Monday, February 04, 2019

Originalism off the Ground

By Eric Segall

Professors Will Baude and Stephen Sachs are at it again. They have continued their quest to convince the world that originalism is, indeed, our law. Their new article is "Grounding Originalism."

In previous articles and essays, Baude and Sachs have set forth a positivist account of constitutional law, arguing that our law is the Founders' law until properly amended or changed. They have also claimed that our Founders' law allows judges to change old applications of legal principles if new facts require such changes, as long as the constitutional provision at issue was intended, designed or originally meant to allow judges to do just that. In other words, cases such as Brown v. Board of Education and Obergefell v. Hodges, which most scholars categorize as non-originalist, may properly be classified as originalist decisions if, and only if, the 14th Amendment's original meaning embraced evolving applications by judges (an issue that the authors surprisingly have so far ducked).

Baude and Sachs have also argued that lawyers, law professors and judges often criticize or praise Supreme Court decisions based on originalist criteria and make originalist arguments to the Court, thereby demonstrating that our legal vocabulary is originalist, which shows that originalism is our law. In their newest piece, they point to scholarly and lawyerly debates over the Emoluments Clause and what that word originally meant to show the large role that originalism plays in constitutional interpretation. Why argue so ferociously over originalist evidence if originalism isn't our law (well maybe to hide the value judgments that will ultimately decide the case)?

"Grounding Originalism" also contains much discussion of Hartian philosophy and rule of recognition issues, which some critics have used to critique their work. But the authors concede that "the more enduring dispute between us and many of our critics is far more banal: it’s a simple empirical disagreement. Maybe our beliefs seem odd, not because there’s anything wrong with our legal theory, but simply because other readers don’t see how our existing legal practice grounds a form of originalism." This is where I come in.

I'll likely have a further, more detailed law review response, but for now it is enough to rehash a few arguments I've made before in my work criticizing the notion that originalism is our law, while adding a few new thoughts to that critique.
Although they often drift towards 30,000-feet-off-the-ground philosophical debates, I read Baude and Sachs to be making arguments about lawyers, judges, and legal problems on the ground. After all, they are claiming a descriptive account of our actual law and legal practice, not refereeing disputes between and among Hart, Dworkin, and Posner. No imaginary Hercules here.

I've argued that the Court's constitutional law jurisprudence is far, far removed from the original Constitution, as amended. The examples are voluminous. Equal rights (or almost equal rights) for women were not in any way protected by the original public meaning of the equal protection clause, and of course the same is true for gays and lesbians. Despite a few outliers, there is a substantial consensus that Brown is also inconsistent with the 14th Amendment's original meaning. The Rehnquist's Court's anti-commandeering decisions and sovereign immunity decisions also offend the Constitution's original meaning. University of Richmond Law Professor Jud Campbell has recently and elegantly argued that the Court's robust, complicated, and common law form of free speech doctrine has not been justified (and I believe could not be justified) by the first amendment's original meaning. Baude and Sachs themselves have previously listed a bevy of important cases they think might be inconsistent with the Constitution's original meaning, including the blockbuster one person, one vote holding of Reynolds v. Sims, the Court's standing doctrine as articulated in Lujan v. Defenders of Wildlife, and many of the Court's commerce cause cases. I could, and I'm guessing they could, go on and on.

So if the Court's jurisprudence is so chock full of decisions inconsistent with original meaning, how can originalism be our law? The authors have two principal responses. First, they deny that cases like Brown and Obergefell refute their thesis, because those cases asked the right question: what did the 14th Amendment actually require judges to do? And if the answer is allow evolutionary decision-making based on changed facts and values, then those decisions are part of the originalist canon. But this response fails because, as I've argued elsewhere, if Baude and Sachs are correct, then originalism and non-originalism merge, and they could just as easily say living constitutionalism or pluralistic methods of constitutional interpretation are "our law."

Non-originalist constitutional law professors such as Erwin Chemerinsky, David Strauss, and Phillip Bobbitt argue that their respective methods are also grounded in constitutional practice and meaning. They argue the Constitution was meant to evolve over time because the framers wouldn't have expected vague text to remain fixed in the factual contexts of 1787 or 1868. This is exactly what Baude and Sachs claim is true or might be true about most of the litigated, vague provisions of the Constitution. Thus, again, originalism and non-originalism merge, and there is nothing at stake between adopting one label or the other, at least for those parts of the Constitution that most often lead to litigation.

The authors' second response is a bit more complicated, but they seem to argue that we use the language and sources of originalism to debate and criticize Supreme Court opinions, and therefore originalim has "bite." But of course we also use the language of policy and value judgments to criticize Court decisions. Roe is wrong because the fetus is a person; Obergefell will doom children and traditional marriage; Citizens United will increase the role of money in politics; and so on and so forth. The reality is critique comes with both originalist and non-originalist content, and the authors have never tried to make an empirical showing that one transcends the other. We all agree, I mean really everyone agrees, that original meaning is a factor in constitutional analysis, practice, and decision-making, and if the authors' argument was originalism is part of our law, we'd just be arguing over how big a part, or how big a "bite." But in their recent article, they deny that is their claim.

Another objection I've made to their work is that important historians such as Silvia Snowiss and Gordon Wood, among others, have conducted substantial research into the founding era to conclude that the law at the founding was that judges would either exercise strong deference or super-strong deference to state and federal laws (unless the role of the court or jury was directly at stake). I summarized this research in Chapter 2 of my book Originalism as Faith.

Imagine a world of rational basis or maybe rational basis plus review across all of constitutional law, and that is what the framers expected. But that is not our law, nor was the change from strong deference to aggressive judicial review ever connected by the Court to our original law (and I'll add that originalist scholars have also failed to make that connection). Raoul Berger, Robert Bork, and Lino Graglia were right as a purely historical matter about what the Court's role was supposed to be, and it was emphatically not meant to be a common law overseer over our most fundamental social, political, and moral issues based on vague text and contested history. Thus, the Court's role today is not its original role, and originalism isn't our law.

All of which brings us to the most important flaw in Baude's and Sach's arguments. The real question is how much of a role originalism actually plays in Supreme Court decisions. Leaving aside the general deference argument above, my recent book spends considerable ink showing not much. The authors don't wrestle with those of us who have documented how little text or history actually matters to the Court. In "Grounding Originalism," Baude and Sachs respond to Professor David Strauss' compelling descriptive account of common law constitutionalism not by wrestling with the long list of cases he says support his theory but by suggesting Strauss admits his account is odd because it is “not [one] we usually associate with a written constitution, or indeed with codified law of any kind.” Yet, Strauss maintains he is correct, so I'm not sure what this response adds. Many of us think the Court's behavior across a spectrum of issues and practices is "odd," but we describe the Court we have, not the one we want.

I'll have a lot more to say in a different venue, especially about how Baude and Sachs respond to Strauss and other critics, but for now, it is enough to suggest that the central thesis of "Grounding Originalism" is found in its conclusion:
As we see it, the relationship between past and present is this: (1) As a theoretical matter, positivists like us figure out today’s law based on today’s social facts. (2) As a contingent, empirical matter, today’s social facts happen to incorporate the Founders’ law by reference. (3) As a historical, legal matter, the Founders’ law allowed for various kinds of changes, including both formal enactments and the incorporation by reference of various kinds of customary law.
We all agree with 1 and 3. Some parts of the Constitution's law under today's practices allow for, maybe even require, change. No one thinks that about the requirements that the President be 35 or that each State gets two senators, but most think that about vague phrases like "speech," "establishment," "due process," "equal protection," and "liberty," among many others.

Much more importantly, the Supreme Court thinks, and has always thought, that applications of vague constitutional principles need to evolve over time. If that means originalism is our law, then so is living constitutionalism, common law constitutionalism, and pluralistic constitutional theories, and then we should all just get along.

But we don't all get along, and that is because Baude and Sachs are wrong that originalism or any other theoretical pre-commitment is our law. When it comes to Supreme Court constitutional law, the most accurate description is that the Court balances one or more important values against other important values, and then reaches a result. Text and history are used (sometimes) by the Justices to rationalize the balancing of those values. But those are today's values, not the values of slave owners, segregationists, and privileged white men who denied women most basic rights. The values at issue in today's cases are current values, and that is why originalism is emphatically not our law, at least down here on the ground.


Joe said...

"Originalism" is something of a trope.

I have various responses to appeals to "originalism" and a major one is the basic idea that a sort of "common law constitutionalism" (a term used by some) is actually a match to original understanding. So, in effect, the two sides overlap.

Originalism as a trope has had strong staying power. There is a constant refrain, even from strong critics of conservatives, about what the founders believed. This often focuses on a few of them. The Federalist Papers is the biggest example of this. There is some ground to given that some degree of extra respect, but it still is a set of partisan op-ed essays whose authors themselves not only weren't completely aboveboard (again, they were partisan op-eds to advance a cause, not neutral expressions of original understanding) but later changed their minds on certain things.

So, the attempt to show originalism is valid will continue. I appreciate the response.

Shag from Brookline said...

Prior to getting to this post, I had read at HuffPost this morning Paul Blumenthal's report "How Liberals Learned to Love Originalism." Last week a WaPo Op-Ed focused on a recent article on the meaning of "emoluments" that should favor the plaintiffs in the pending emoluments cases against Trump; the authors of the article used corpus linguistics methodology. At PrawfsBlog, a poster was critical of that article's methodology On an earlier post at this Blog, I mentioned Prof. Witt's review/essay of a new bio on CJ Marshall by a conservative author, Richard Brookhiser, in which Prof Witt was critical of Marshall's history on the Court. Prof. Witt even touched on originalism regarding several of Marshall's major decisions. Originalism continues to seek some sort of objectivity, perhaps science, in efforts to overcome the subjectivity of early originalism and now the problems of sinkholes in the "Construction Zone" of the New Originalism. Will originalism ever get to its promised land of a libertarian Constitution? Might successful liberals utilize some forms of originalism to get progressive rather than conservative results in the courts? Did Jack Balkin pave the way on the "Construction Zone" with his earlier "Living Originalism"?

I'll comment later on Eric's post, perhaps even before the Originalism Blog circles the various wagons of originalism around him.

Joe said...

I note how debates over originalism often focus on the original federal Constitution or at best to a lesser extent the 14th Amendment.

But, as a rule of construction, it would apply much more broadly. For instance, the Supreme Court is deciding a case this term regarding the 21st Amendment.

See also, RBG's concurring opinion here (statutory construction):

Shag from Brookline said...

Prior to "Grounding Originalism" were the various versions of originalism as it evolved shocking? When was originalism grounded, keeping in mind that the movement started in the 1970s? There's a suggestion that living constitutionalism was grounded earlier. I recall in the 8th grade back in 1942 in a shop course that when dealing with electricity to be careful that there was grounding. I await further critiques by Eric on "Grounding Originalism.' In the vernacular, a detailed response might be titled "Originalism Bites ..." SCOTUS is not as yet an originalist court.