To oversimplify, Professor Solum argues that sometimes originalism requires interpreters to consider changed facts (or changed understandings of facts) in applying a text’s original meaning. (His example is Bradwell v. Illinois, asking whether a law barring women from becoming lawyers violates the equal protection clause; his answer is that, because we now understand that women are equal to men in terms of practicing law, there is an equal protection violation, even if that was not understood at the time of enactment.) Professor Segall says that this move converts originalism into living constitutionalism because it gives judges discretion to update the Constitution in accord with modern values.
I’m with Solum on this one (though I’m with Segall on some other matters).
The Bradwell example does not involve changing the meaning of the equal protection clause. “Equal” still means what it meant at the time of enactment. It’s just that we now understand that two things are equal (in that original meaning) although previously they were thought unequal. I once saw an exhibit at a science museum that displayed an array of objects arranged around two parallel lines, creating an optical illusion in which one line appeared much longer than the other. If you asked me, are these two lines equal in length, I would have said no. But when the lines were measured with a ruler, it turned out that they were the same length. If you then asked me, are these two lines equal in length, I would have said yes they are; I was mistaken before. This change does not depend on a change in the meaning of “equal” — in reaching my second conclusion, I am using the original meaning of equal. So with Bradwell.
But the Bradwell situation is unusual in constitutional law. Most provisions don’t work like the equal protection clause, which states a rule whose application is highly dependent on facts. Consider (as I often like to) the declare war clause. Assume the original meaning of the declare war clause is that the President must have the approval of Congress before initiating military hostilities. Further assume that the framers thought this was a good rule because hostilities unfolded relatively slowly in the eighteenth century, so requiring Congress’ approval was not a threat to national security.
Now assume in the modern world we conclude, because of the increase in the speed with which threats develop, that requiring congressional approval to initiate hostilities produces a serious national security problem. May a modern originalist interpreter “update” the declare war clause in light of modern circumstances to allow presidential wars in response to developing threats?
My answer (and I assume Professor Solum’s answer) is: absolutely not. If the original meaning of the declare war clause is that the President must get Congress’ approval, the application of that meaning in the modern world isn’t affected by the changes in the technology of warfare. The President still must get Congress’ approval. True, the changes in the technology of warfare may make the rule, as established by the original meaning, a greater threat to national security. But that’s an argument about whether the original meaning establishes a good rule, not an argument about what the rule is. The change in factual circumstances is irrelevant to identifying the rule established by the declare war clause.
I think most constitutional provisions (especially outside the Fourteenth Amendment) are like the declare war clause, not like the equal protection clause. And even if they aren’t, the declare war clause example shows that sometimes, at least, originalism is different from living constitutionalism.
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.