Originalism as Current Law? Yet Another response to Baude and Sachs

By Eric Segall

Last Friday, two things happened to me related to originalism. I received in the mail reprints of an article I wrote for Constitutional Commentary (no link yet) called "Originalism Off the Ground." The piece was a response to yet another Arthurian attempt by Professors Will Baude and Stephen Sachs to convince the world that Originalism is indeed our law. The thrust of my piece was that the collective work of Will and Steve on originalism and history (I will use their first names because I consider them friends) has failed to address the core realist critique that constitutional law is mostly the sum of the Justices' value preferences, and originalism and all other meta theories play at most a negligible role.

The second thing that happened on Friday was that Steve put on Facebook a link to his and Will's new essay titled "Originalism and the Law of the Past," published by the Law and History Review. The SSRN link is here. The third and fourth sentences of this essay state that "originalism is best understood as a claim about modern law-which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders' law, unless lawfully changed."

Their entire essay (with one small exception discussed below) ignores the argument that the "law" of the past in constitutional law is composed of imprecise text, contested history, political practices that often lead to opposing perspectives about the issue of the day, and Supreme Court precedent which is mostly dictated by values, politics, and experiences, not history. In sum, once again, Will and Steve do not address in any serious way the realist critique. They are avoiding it like the plague (I have drawn their attention to it on numerous occasions in person and in writing). For two legal positivists, this avoidance is important.

There is a lot in their essay about private law and how judges in property and other non-constitutional law cases refer to the past if and when appropriate. Fine. But Will and Steve give the game away with their opening example: "Applying yesterday's 'no vehicle in the park' ordinance is no less fraught -and no more so-than applying Founding-era legal doctrines."

Maybe yes, maybe no, but according to the entire corpus of their work, part of the "Founding-era legal doctrines" is that the Founders may well have expected vague constitutional text to be applied by judges in an evolving manner, exactly as a Living Constitutionalist would argue. This idea forms the basis for their belief that there may be originalist justifications for cases like Brown v. Board of Education, and Obergefell v. Hodges, because the ratifiers of the Fourteenth Amendment and the public at the time might have thought that Amendment would be applied differently as facts and society's values changed. This aspect of their work directly reflects the construction zone New Originalism which many of us have argued is just Living Constitutionalism with an obscuring label. Here is Professor Larry Solum, one of the Deans of the New Originalism, in a brand new piece:

In Bradwell v. Illinois, the Supreme Court upheld Myra Bradwell’s exclusion from the Illinois bar on the basis of gender…. Bradwell could have been understood as consistent  with the [Privileges or Immunities Clause] by Justices who believed that women were intellectually incapable of functioning as competent lawyers. The opposite result would be required [today] given true beliefs about women’s intellectual capacities. Fixed  original public meaning can give rise to different outcomes given changing beliefs about  facts....[Originalism] does not require constitutional actors to adhere to false factual beliefs held by the drafters, Framers, ratifiers, or the public.

Similarly, Ilan Wurman, in his book on Originalism, states that “Originalists recognize that original meaning often requires that the application of the text evolves as modern circumstances evolve."

I am assuming that Will and Steve agree with Ilan and Larry because they write at the end of their most recent essay, that "old law is current law only because-and to the extent that-current law so commands... Maybe the originalists are wrong about current law, or maybe current law is ill-advised. But either way, these latter questions are not ones history can answer."

Okay, so history is a tool to be used only when current law so requires, and often history can't answer the question posed. This thesis leads to two ineluctable conclusions. First, the "current law" of most litigated provisions (because such text is almost always imprecise) is that judges can depart from the old law if facts and circumstances change. That is exactly what Living Constitutionalists believe. No one thinks, or almost no one thinks, judges can depart from crystal clear text such as the President must be thirty-five or there must be two Senators from every state. Current law tells us to apply those provisions as written in the past, but those kinds of provisions are almost never litigated.

Second, Will and Steve argue that the fact that we reasonably disagree about history in cases like Citizens United, and D.C. v. Heller does not suggest Originalism isn't at play because "to cast aside originalism simply because it asks unanticipated questions of the past is to cast aside the use of pre-existing law...." This is a nod to legal indeterminancy and legal realism but only a nod. The disputed history at the core of difficult constitutional law cases is not law. It is judges, law clerks, and law professors interpreting prior historical time periods without expertise, in an effort to justify decisions they are likely reaching on other grounds. And even if we see the Justices' efforts in the best light, there can be little debate that most of their time, as David Strauss argues, is spent on their own constructed legal doctrines not history or originalist evidence. This is the realist critique, it is well-founded, and yet Steve and Will still won't really wrestle with it.

At the end of the day, what I suggested in my book Originalism as Faith, is shown most clearly through the work of these two brilliant law professors who have written what I think are important and persuasive articles separate from their work on Originalism. I argued in my book that for many the label "Originalist" is an article of faith, a way to avoid the realist critique. In the hands of Will and Steve, along with most of the scholars who self-identify as New Originalists, constitutional law is allowed to deviate from original meaning when facts change (and the distinction between facts and values is murky at best). If originalism allows, as Wurman suggests, "that original meaning often requires that the application of the text evolves as modern circumstances evolve," then judges will have almost complete discretion to choose which facts and values have changed since 1787 and 1868, questions that lead to enormous judicial choice and most importantly a vibrant and living Constitution. 

Why can't Will and Steve, who now concede that history is only important if current law makes it so,  accept that label? Whatever the answer, it is not easily seen through the lens of the law. My wild guess is they are running away from legal realism as fast as they possibly can. Law has to matter to them as an article of faith even in the most difficult constitutional law cases like Citizens United and Heller.  But maybe I'm wrong. Someday I hope they address this question head on, especially if they continue to tilt at windmills by claiming that originalism is our law.