Originalism Diluted

 By Eric Segall

In a forthcoming article in the Harvard Law Review titled “Originalism Standard and Procedure,” Professor Stephen Sachs continues his Arthurian quest to convince (not sure whom, academics, judges, philosophers, everyone) that originalism is indeed our law. This mission, which he and his frequent writing partner Professor Will Baude, have been on for a while, has generated numerous essays, articles, and blog posts sometimes referred to as the “positivist turn,” or “originalism is our law” originalism. In his latest Article, Sachs argues that originalism is a standard, not a decision procedure. In more common terms, he tells us that originalism is a “destination, not a route.”

 Sachs says the point of borrowing the philosophical distinction between a “standard of rightness” and a “decision procedure” is to demonstrate, not that originalism is true, but that many arguments against originalism are wrongheaded. In his own words, “the uncertainty of our legal past, or the inconsistent behavior of originalism in office, might not count against the theory [of originalism] itself." 

That originalism is difficult, or that reasonable people might disagree about what it shows in a case or series of cases, or that it is easily manipulated and/or evaded, does not disprove the theory because, according to Sachs, we often have standards of correct behavior that are hard to get right but which remain important, worthy, and highly desirable. For example, Sachs points to consequentialists, like retired Judge Richard Posner, who argue that judicial decisions should lead to the best consequences while admitting that how to figure out what that means is hard and usually contestable. So too with originalism. Even if we cannot all get there together, Sachs argues, having the destination is a good thing, and fights along the way are inevitable because humans (including judge and philosophers) are fallible.

When combined with his previous work, Professor Sachs suggests that “our law is the founders’ law until legally changed,” that originalism is at least a formidable contender for being the “founders’ law,” and that whether or not judges are or even could be faithful originalism is irrelevant to what our law is-which is, indeed, originalism.

Professor Sachs’s thesis is unpersuasive for a strange reason, given that he self-describes his work as positivist. The reality, on the ground, is that originalism was never our law at the Founding (just a small part of it), and that originalism (without strong judicial deference) as a final landing place is a road to nowhere but the imposition of personal value judgments by judges who hide behind misleading pointers to disputed historical evidence. It is unclear if Sachs even disagrees with all this because he says the "effectiveness" of originalism as a decision-procedure "is besides the point." 

Maybe in some alternate world (perhaps one with great judicial deference) the Founders’ law would be our law but in our constitutional world the Supreme Court has changed constitutional doctrine regularly for over 150 years. The constitutional doctrines of of free speech, free exercise, the commerce clause, equal protection, dur process, and criminal procedure, among many others, have all changed dramatically since both 1791 and 1868. The only way to make sense of Sachs’s thesis is to say that the Founders' law allows for judges to update and change constitutional law, which is to say originalism is either not our law or is defined so broadly that it includes major constitutional changes, and thus loses any independent force.

I have chided Professors Sachs and Baude before for failing to wrestle with the realist perspective that, absent binding precedent, judges in most constitutional law cases will normally do what they think best, all things considered. That is why Chief Justice Marshall ruled for the federal government in McCulloch v. Maryland, why Chief Justice Taney ruled the way he did in Dred Scott, why Chief Justice Warren ruled the way he did in Brown v. Board, why Justice Kennedy wrote the only four Supreme Court opinions in history protecting gay rights under the Constitution, and why Chief Justice John Roberts gutted the Voting Rights Act in Shelby County v. Holder, among hundreds of other Supreme Court cases where values and politics drove the decisions. Of all people, Professor Sachs, a positivist, should know that originalism has never been consistently applied by judges. On the ground, originalism has been much more a dead end than a realizable destination.

Sachs's new account of originalism as a destination, not a route, waters down the theory beyond recognition and provides little explanatory power for most of the Supreme Court’s landmark decisions, many of which, like Brown and Obergefell, explicitly rejected the doctrine. I cannot say it better than one of our most admired Supreme Court Justices in one of the most important cases in American history, Youngstown Sheet and Tube Co., v. Sawyer. Trying to decide whether President Truman could seize private property to help our military effort in Korea, Justice Jackson wrote the following:

Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other.

Professor Sachs's newest effort to use originalism to describe our actual law does not even attempt to establish that the doctrine has been achievable by judges in the past or could be usefully employed by them in the future. He even says such considerations may be irrelevant when assessing originalism. He also, in this long article, does not even try to show that the founders actually expected originalism to be our law. Originalism as a destination, not a route, is in all respects simply originalism diluted to the point of invisibility.