Monday, December 05, 2016

Legal Realist Originalism?

By Eric Segall

Earlier this year, Professor Will Baude of the University of Chicago published an essay in the Columbia Law Review titled "Is Originalism Our Law?". He argued that landmark Supreme Court cases such as Home Bldg. & Loan Ass'n v. Blaisdell, Brown v. Board of Education, and Obergefell v. Hodges, which virtually the entire world views as examples of either living constitutionalism, or the pluralistic/common law descriptive theories of David Strauss and Mike Dorf, are actually originalist as written

          Baude argues that these and other important Supreme Court decisions recognized that the constitutional provisions at issue were meant by the ratifiers and/or framers of those provisions to evolve over time.  By recognizing that history, the Supreme Court acts in an originalist fashion even when it interprets those provisions in specific and modern ways that would have shocked the ratifiers and framers of those provisions (such as finding that the Equal Protection Clause means that gays and lesbians have the right to marry on equal terms as heterosexuals).

In essence, Baude argues that, as long as the Court uses a mode of interpretation that the people alive in 1787 would have recognized as legitimate, the Court is using what he calls “inclusive originalism.” He claims that those folks understood that “fixed texts can harness what seem to be changing meanings. Though the text may have originally been expected to apply in a particular way to a particular circumstance, that does not mean that its original meaning always must apply in the same way.” Thus, according to Baude,  “originalists can sensibly apply legal texts to circumstances unforeseeable at the time of enactment,” and come up with results that defy the original expectations of the people who drafted and ratified those provisions.

On Friday, the Cornell Law Review On Line published my response to these arguments (there has also been a short back and forth in the Green Bag between Baude with Stephen E. Sachs and Judge Posner and myself on the same issues). The thrust of my reply is that Baude's descriptive account of constitutional law is accurate but labeling that account “originalist” is obviously misleading if originalism as a term of art is to carry any weight separate from living constitutionalist or pluralistic theories of constitutional interpretation. After all, as both Judge Posner and I have shown, both Brown and Obergefell emphatically and explicitly rejected using originalist methods of constitutional interpretation. Because both Professors Baude and Sachs are outstanding scholars who have contributed to constitutional discourse in substantial ways, I think a fair question to ask is why they are making, in Jack Balkin’s words, “off the wall” legal arguments. 

It appears that Baude and Sachs (and many others) are trying to hold on to the idea that the originalism label can explain and justify much of what the Supreme Court has done and should do in the future. And, of course, they are not alone.  It has been ten years since Professor Fleming asked whether “we are all originalists now,” and only six years since Justice Kagan answered “yes.” Even President-elect Trump, who of course knows nothing about the Supreme Court or constitutional law, has promised to nominate originalist judges. And, is there any doubt that a Supreme Court nominee who explicitly rejected the originalist label in her confirmation hearings would be rejected by the current Senate?

But just like the man who loudly and proudly proclaims that he “loves all women” probably doesn’t love any one woman, folks who claim that “we are all originalists now” aren’t really originalists. After all, what Judge Bork, Raul Berger, and Lino Graglia, the original originalists, actually argued was that judges needed to be tied to original meaning so that their judicial discretion would be limited. A judge who is allowed under “inclusive originalism” to apply new constitutional meanings to modern problems solely because most constitutional cases involve abstract constitutional provisions is deciding cases exactly like the liberals on the Warren Court did or in ways that non-originalists like Dorf and Strauss think are appropriate. To claim that those liberal judges and scholars are actually originalists in disguise is to make a claim that Bork, Graglia and Berger (not to mention Scalia and Thomas) would strongly deny. 

           Of course, Baude's and Sach's arguments aren't necessarily wrong just because their "originalism" is different from, or shall I say has evolved from, Bork's and Berger's originalism. But to the extent that their label applies and describes accurately the work of Justice Brennan and Professor Strauss, it is certainly mystifying.

So what is the point of this entire enterprise? Are Baude and Sachs (not to mention self-proclaimed New Originalists such as Ilya Somin and Steve Calabresi who also defended the result in Obergefell on an originalist basis) trying to turn constitutional law upside down (maybe like the critical legal scholars of the 1980's)? 

I don’t think so. My tentative theory is that this obsession with the originalist label, as opposed its substance, derives from a reluctance to accept the legal realist critique of the Supreme Court that the Justices' decisions are about values, not methodology, all the way down. If Baude, Sachs, Somin, and Calabresi were to come out and say something like "the Justices should decide cases using their modern values and sensibilities because that is what the framers wanted them to do, and we will now call that "Modern Values Jurisprudence," these scholars would be advocating something perilously close to the legal realist critique. But these scholars, to the best of my knowledge, don't want to be associated with that academic school. Nevertheless, expect someone soon, maybe other New Originalists like Jack Balkin (author of the book "Living Originalism") or Randy Barnett (author of the article "An Originalism for Non-Originalists"), to write an article or book labeled "Legal Realist Originalism." I will not celebrate that day.

When scholars debate and argue Supreme Court decisions, methodological arguments and labels get in the way of clear understandings. When the Justices use those same methodological arguments to mask the value choices they are really making, governmental transparency suffers. As Erwin Chemerinsky argued long ago, ultimately constitutional law decisions by the Supreme Court should be written and then defended on the basis of the "value choices the Court [has] made. There is [simply] nothing else."


Shag from Brookline said...

Shakespeare's Romeo & Juliet informed us:

"What’s in a name? That which we call a rose / By any other name would smell as sweet.”

Originalism as a method of its interpretation/construction is not specified in the Constitution as it has been amended. Back in 1787 there were rules for interpretation of statutes in common law legal systems. Our Constitution, while not necessarily the first constitution, was novel in many senses, distinct from statutes and common law, unique for circumstances that then existed, with certain formal amendments over the years since to address its shortcomings. When I took ConLaw in the Fall of 1952, there was no mention of originalism as the method for the interpretation/construction of the Constitution. In the Spring of 1954, as I was finishing law school, the Warren Court issued its unanimous decision in Brown v. Bd. of Educ, just a single opinion, with no concurring opinions. The reactions to Brown were mixed, as could have been expected with America's histories first of slavery and then Jim Crow. Brown and other Warren Court decisions planted the seeds of originalism as constitutional scholars differed with respect to such decisions. Originalism developed in the 1970s and set its stake during the Reagan Administration via its AG Ed Meese, then described as original intent of the Framers.

Original intent was challenged and that started an evolution of originalism employing adjectives, etc, to describe variations of originalism that continue to this day. A few years back, a critic of originalism in effect listed the names of such evolving originalism. I don't have a cite but perhaps someone out there will find it. As I recall, there may have been close to 100 names. In any event Eric's post demonstrates the continuing efforts of an evolving originalism by constitutional scholars in their search for the Holy Grail of Constitutional Interpretation/Construction.

Getting back to Brown, that decision was promptly challenged by constitutional scholars as not being in compliance with the Constitution. Brown was also challenged politically on racial grounds. But in due (but too long a) course, following the civil rights movement, despite the original objections of originalists, few directly challenged Brown any longer. In fact, creative originalists (before Baude) made the argument that Brown comported with originalism. Apparently such an argument was necessary in defense of the concept of originalism because of what appeared to be legal and political acceptance of Brown, especially with the election of America's first African American President in 2008 and reelected in 2012.

But then we had the 2016 presidential election. Can we expect direct challenges to Brown? Yes, there have been indirect challenges of Brown in the recent past. We'll just have to wait and see as President-Elect Trump campaigned on nominating to the Court justices like the late Antonin Scalia. Might originalism stop evolving and revert to its origins of original intent?

One thing is clear: Originalism is not like a rose. Originalism means different things to different legal theories of originalism that emerged since original intent. Originalism has an olfactory problem; some of its scents don't make sense.

Joe said...

Originalism sounds like some sort of role playing game but the important thing is not so much the exact rules but calling it "originalism" and finding a way to defend doing so. Since so many conservative jurists and law professor types find it important, pragmatically, it's useful to be able to follow the game. Still.

Who's left on the Supreme Court, e.g., who cares? Kennedy is a best a weak willing originalist & speaks of "the last fifty years" being important sometimes, less in other cases. For instance, and I respect this, when the latest legislative prayer case was up, Kennedy didn't merely rest on raw tradition ala Marsh v. Chambers. Some sort of continual historical practice had to be available. Alito made a quip on Scalia wanting to know what Madison thought about video games. Roberts is a pragmatist too on the question, surely. So, that leaves Thomas?

But, I know Shag likes to role play the originalist way, so surely appreciates the conversation.

David Ricardo said...

The concept of Originalism as applied to the Court is a joke, a farce and cannot be taken seriously.

Originalism is a conceived concept largely used by Conservatives, both Justices and others to defend their pre-determined positions based on idelology rather than law and logic. It is readily dropped when it is in contradiction to what conservatives want to rule. So despite Originalism conservatives have no problem with the Court declaring that 'money is speech', that a right to counsel does not mean effective or competent counsel, that guards assaulting prison inmates is not cruel and unusual punishment, that the takings clause does not mean the government can take property of the accused before they are even tried . . .

Well you get the picture. So stop treating Originalism as though it were a serious topic.

Shag from Brookline said...


"Alito made a quip on Scalia wanting to know what Madison thought about video games."

raised thoughts of whether beyond the Pearly Gates there is a Founders' Section that the late Justice Scalia might have visited to discuss Alito's quip as well as bring James up to date on originalism. Regarding James' thoughts, perhaps Scalia, based on Mary Bilder's book on James' notes, would focus on the dates that James had such thoughts, as it seems James edited his notes post 1787 up to his demise here on earth many decades later. If only originalism had the benefit of any such efforts by Scalia at the Founders' Section.

As to David's closing:

"So stop treating Originalism as though it were a serious topic."

I suggest visits to the Originalism Blog to note variations on originalism, especially contrasts between originalists Mike (I'm not Rappaport) Ramsey and Mike (I'm not Ramsey) Rappaport. Originalism of all variations is seriously treated and defended from attacks at that Blog, whereas it provides comic relief for me, especially claims of some originalists that Article II's "emoluments clause" does not apply to the President. (Query whether Scalia might have raised this with James at the Founders' Section?)

Originalism is a matter of faith, defended by the 1st A's free exercise clause. But the 1st A's establishment clause defends non-originalism from the imposition of that faith. But this may change under President-elect Trump, turning comedy into constitutional tragedy.

Shag from Brookline said...

By the way, the battles of legal scholars between originalism and non-originalism may be looked upon in the manner of that Bud Light commercial debate on its drinkers: "Great taste!" "Less filling!" Both sides are "drinking" the same Constitution.

David Ricardo said...

As an academic issue the various professionals have every right to debate the concept of orgiinalism, and to take it seriously and question the intent of the authors of the Constitution. It can serve as a serious vehicle of scholarly investigation, much the same way we economists try to divine what Keynes opined on the issue of derivatives.

As a practical matter the Constitution is largely a set of principles (equal protection, due process, prohibiion of cruel and unusual punishment, right to bear arms, establshment of religion etc) and so trying to divine the 'intent' of the authors is akin to astrology. And like almost everything else the conservative touch they have corrupted the concept to suit their purposes, embracing it when it supports their positions, ignoring it when it does not. So in the real world as opposed to the ivy covered walls of academia originalism is a silly discussion.

Joe said...

"seriously and question the intent of the authors of the Constitution"

Is that the proper way to phrase it? Or, is it "expectations" or whatever?

But, that sort of thing is useful to debate on a historical level, but "originalism" is an "ism." It does more than that. It tries to formulate rules to apply the law today based somehow on original understanding. Or, whatever word is used.

Shag from Brookline said...

The various academic professionals include historians and linguists in addition to the legals, who are far from a consensus on originalism To the extent that history plays a role, historians and others have questioned the use of history by justices, judges and legal scholars. And linguists have quested the latter group on the use of linguistics. Heller is a good place for such questioning. Legal academics jump through originalism hoops hoping to convince justices and judges of their views; it's not a legal academic debating society. The comparison with Keynes is inapt as he was one individual in comparison to the multiple Framers, Ratifiers and Congress (via the bill of rights and other Amendments flowing from Congress). Besides, original intent is mostly passe as a result of the evolution of originalism.

By the way, legal academics favoring originalism have taken their case public so it's not just a mere legal academic debate any longer.

David Ricardo said...

I will gladly accept the orginalists argument that by definition any punishment that was acceptable and not cruel and/or unusual when the Bill of Rights was ratified if the orginalists will accept the argument that the right to bear arms refers to only those arms that existed at the time the Bill of Rights was ratified.