Monday, August 12, 2019

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.


Shag from Brookline said...

Query: Is the infrastructure of the New Originalism's "construction zone" determined as of the ratification of the 14th A? If so, how are sinkholes discovered over the past century and a half to be addressed, by history? It seems the New Originalism continues to evolve evidencing indirectly faith in evolution. But test that faith post-Heller v. DC (2008, 5-4) with mass killings with semi-automatic assault weapons, including the recent episodes in El Paso and Dayton. Did the SCOTUS majority in Heller put its faith in Justice Scalia's dicta on 2nd A limitations?

Joe said...

"Why can't Will and Steve, who now concede that history is only important if current law makes it so, accept that label?"

Because people who make stuff up [this is the polite way to phrase it] are "living constitutonalists" so like Catholic theologians in the Middle Ages, a fixed round hole is assumed, even if only a square peg is available to fill it.

I say this as someone who is not a fan of originalism and who thinks that response is wrong but there are many who quite seriously think that. So, to be invited to their birthday parties or something, we have to have some new form of "originalism" to fit.

The whole thing to me gets to be ridiculous but we live in their legal world these days, I guess.

Shag from Brookline said...

The Legal Theory Blog provides an August 11, 2019, updated "Legal Theory Lexicon: Originalism" citing resources, a periodic update feature. The Originalism Blog reviewed in tandem with Legal Theory Blog reflect the continuing evolution of originalism. Perhaps the grounding goal is "Promised Land Originalism."

Coyote said...

Good post, Professor Segall! I do have some points to make, though:

-In regards to this part of your post ("No one thinks, or almost no one thinks, judges can depart from crystal clear text such as the President must be thirty-five"), this actually isn't always true. In fact, Professor Nelson Lund argues (in his article "Living Originalism: The Magical Mystery Tour") that a "living originalist" could read the 26th Amendment as implicitly lowering the age requirements for all US federal political offices--including the US Presidency--to 18 years. This would be especially true if originalists are not bound by the draftsmen's and/or ratifiers' original expectations in regards to the application of the 26th Amendment. After all, we could say that even if contemporaries of the 26th Amendment didn't actually intend to use it for this purpose, a hypothetical "contemporary reasonable reader" could have read the 26th Amendment in a different light--especially if such a reader would have viewed the 15th and 19th Amendments as guaranteeing blacks and women, respectively, the right to hold any political office of their choice. Alternatively, one could argue that while the idea of young adult politicians might have seemed horrifying to people in 1971, we now know better than they do and thus don't consider this idea to be that horrifying--perhaps due to us having more experience with young adult politicians. This too could be used to justify using the 26th Amendment to allow for an 18-year-old US President.

-If the draftsmen and/or ratifiers expected a US constitutional provision's application to change over time, then Yes, living constitutionalism would be perfectly justified from an originalist perspective. However, Raoul Berger would have almost certainly argued that there is no evidence of such meta-intent from the drafting phase of the 14th Amendment. Now, one could argue that Berger was wrong in regards to this, but one is going to need to clearly show where exactly evidence of such meta-intent actually exists. I mean, just because (for instance) the draftsmen of the 14th Amendment did not actually specify what the Privileges or Immunities mentioned in the 14th Amendment actually are does not in and of itself automatically mean that they would have been perfectly content with judges adding new Privileges or Immunities into the 14th Amendment or removing existing Privileges or Immunities from the 14th Amendment.

-If one is genuinely going to argue that judicial rulings are based on judges' personal views and preferences, then it doesn't make much sense to make parts of the US Constitution immune from judicial challenge. Rather, judges should feel free to strike down parts of the US Constitution that they believe conflict with some other part(s) of the US Constitution. For instance, using the 5th Amendment to strike down the natural-born citizen requirement for the US Presidency. After all, if judging genuinely is about achieving results, and parts of the US Constitution stand in the way of achieving a good result, why not simply have judges declare these parts of the US Constitution to be unconstitutional? In fact, the idea that parts of a constitution can be unconstitutional has already been embraced by various courts worldwide--as research by people such as Yaniv Roznai and Richard Albert shows. If one genuinely believes that judges should aim to achieve good results, then it appears to be hard to avoid the conclusion that there could genuinely be cases where achieving a good result requires striking down a part of the US Constitution and declaring this part to be unconstitutional.

Coyote said...

@Joe: When living constitutionalists begin labeling themselves originalism, then originalism tends to lose a lot of its distinction--especially when living constitutionalists argue that originalism can be used to achieve any or almost any result that they like.

Nelson Lund's 2015 article "Living Originalism: The Magical Mystery Tour" might be a good read for you and for all of the other people here.

Joe said...

Prof. Segall has written (including his second book) much about the flexibility of originalism in action including the form used by Justice Thomas. Others have as well. So, I'm aware of the principle. There is nothing special about "living constitutionalists" as such here though in action they have various limits. They often are more honest about the degree of discretion and choice they have -- see the writings of Justice Breyer -- than originalists who repeatedly talk about how they are more restrained when in practice they are not.

Shag from Brookline said...

Originalism tends to lose a lot of its distinction from its beginning original intent days of the 1970s through variations on theories [actually hypotheses?] of originalism attempting to respond to critiques o originalism to the current views of Will and Steve and the evolving New Originalism.. These critiques by non-originalists (not just living constitutionalists) have been effective in bringing about originalism's evolution. Will and Steve are now in the forefront of this evolution in replacement of Randy Barnett's "spirit" of the Constitution.