Of Vermeule, Baude and Sachs, and Saving Originalism by Destroying It
By Eric Segall
Professors Will Baude and Steve Sachs are at it again. In their Arthurian quest to convince the world that originalism is our law (it isn't), they had to jump into the fray to try and take on Professor Adrian's Vermeule's devastating critiques of originalism in his book "Common Good Constitutionalism." Their review in the Harvard Law Review takes on numerous aspects of the book but their main focus is on originalism. The last line of their review is the following: "[W]hile we can’t root for the book’s success as a manifesto, movement, or call to arms, we wish it were better as a book." I wish Baude and Sachs were either better originalists or not originalists at all.
One of the recurring themes of both Vermeule's critiques of originalism and my own is that once judges are allowed to discard the expected applications of those who ratified the relevant constitutional text, which most of today's originalists say is permissible, then originalism is essentially irrelevant to constitutional litigation and becomes a smoke screen for the imposition of modern-day judicial value judgments--they very thing originalists says they don't want. In my own review of Vermule's book, I said the following:
His critique of originalism is spot on when he says that originalism is an 'illusion' because there is no way to implement it without importing substantive normative values. Additionally, his point that New Originalism leads to results few in the founding generations of 1788 and 1868 would agree with is just true. As he so elegantly put it: 'It is a strange originalism indeed that would be unanimously voted down by the enacting generation.' I might have said 'not recognized' but the point is pretty much the same. Very few people in 1868 thought the 14th Amendment guaranteed equal rights for women; yet most originalists today through various sleights of hand reach that result. The result is correct, the theory is wrong.
Baude and Sachs react quite harshly to the "illusion" language but their defense of originalism proves the point Vermeule, I, and many others have been making for a long time. The reason today's originalism is an illusion according to Vermule, in the words of Baude and Sachs, is because so "long as it’s 'possible' to 'contradict the unanimous expectations of the enacting generation,' Vermeule argues, then 'original’ meaning is ‘fixed’ in only the most nominal sense." Baude and Sachs respond to this critique not by denying that originalism allows judges to discard well-known expected applications of constitutional text but by confirming that originalism allows this move. They say the following:
This issue...has been solved, as one can discover by reading the works cited in the book’s endnotes. A 'familiar feature of legal rules is that the same rule can produce changing outcomes over time....' As Professor Christopher Green has described, legal norms often operate as functions from facts to legal outcomes. As their designated inputs change, the outputs change accordingly. But the rules themselves remain the same, because not every change in facts affects a designated input.
In plain English, Baude and Sachs argue that a vague and imprecise text such as the equal protection clause may lead to different and updated judicial applications over time--applications that may contradict what the ratifiers of the equal protection clause thought it meant as to a specific problem--if the facts change. They approvingly cite Village of Euclid v. Ambler Realty Co., for the proposition that "while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions." And furthermore, according to Euclid, “a degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles." Baude and Sachs apparently believe that this description of constitutional law is "originalist."
In 1998, nine years before Baude or Sachs graduated from law school, I published an article in Constitutional Commentary discussing the very first law review article anyone has ever found discussing the problem of constitutional change. The author of that article, Arthur Machen, writing in 1900, believed that "a political practice determined by judges to be constitutional may later be invalidated by judges, and vice-versa, because the facts to which the original principles are applied are constantly changing." In Machen's words, which express exactly the same idea as the quote from Euclid:
The separation of the law from the facts is a difficult but transcendently important task. For while denying in the most unqualified terms the notion that the Constitution is capable of a varying construction, we may often be swayed by the same arguments advanced in favor of that heresy, and even reach the same results, but in a perfectly legitimate way, simply by a careful discrimination between matters of law and fact. The law of the Constitution remains forever unchanging: the facts to which it must be applied are infinitely various.
So Vermule, myself, Machen, and Baude and Sachs all agree that when deciding whether a law is constitutional or not, judges are allowed to take into account changed facts and legitimately reach outcomes inconsistent with the known expected applications of the text by the ratifying generation. A modern-day example of this point is Professor Larry Solum's justification for equality under the law for women under the 14th Amendment despite the fact that we know with 100% certainty that the people who ratified the 14th Amendment did not think that Amendment meant women were equal under the law. According to Solum:
[I]n 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 [14th Amendment] 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. The Constraint Principle does not require constitutional actors to adhere to false factual beliefs held by the drafters, Framers, ratifiers, or the public.
But as Vermeule and I have argued, once judges centuries removed from ratification have the authority to discard known expected applications based on changed circumstances, originalism loses all its bite or independent force and all we have left is living constitutionalism. The only response Baude and Sachs make to this argument is to say that it is not true that any and all changed applications are consistent with the original rule. But no one has ever made that obviously stupid argument. Applying the equal protection clause today to allow people to kill each other in cold blood would just be wrong.
What I have said, and what Baude and Sachs claim to be a "particularly straightforward example of [an] error," is the following: "judges can’t reach any decision in every case based on this approach but they certainly can reach a result for either party in any litigated case by simply saying, ‘these or those facts ... have changed.’" I stand by that statement and as proof offer my most recent blog post detailing how dramatically constitutional law has changed just since I started teaching in 1991. The law changed because the Justices changed and how they viewed the facts changed, just as Machen said.
No one argues that judges are allowed to just make up new constitutional rules without any tether to constitutional text, while everyone seems to accept that those rules can be applied differently over time as facts change. Of course, using a trite example employed by Baude and Sachs, the First Amendment applies to the internet even though the founding fathers could not have anticipated the internet. But the First Amendment cannot tell us how to apply free speech principles to the internet, and that is where all the action is. To apply the first amendment to the internet requires judges to use modern-day analysis and the imposition of judicial value judgments. If that is originalism, everything is originalism and nothing is originalism.
The reality is that, as I've written before, the "inclusive originalism" championed by Baude and Sachs is an accurate description of what judges do but also deprives originalism of any meaning separate from living constitutionalism. Baude has even argued that cases like Brown and Obergefell might be justifiable on an originalist basis if the ratifiers thought that the 14th Amendment authorized judges to update the amendment's applications over time. But of course smart people who draft imprecise standards such as no state shall deny any person "the equal protection of the laws," or the government shall not impose "cruel and unusual punishments," or engage in "unreasonable searches and seizures," or abridge the "freedom of speech," expect that judges will have to change the applications of that language as times and facts change. That is how constitutional litigation works yesterday, today, and most likely tomorrow. The basis for decision is almost always today's values based on today's world, not the values of those who lived long ago in a much different world.
Baude and Sachs have no answers for this descriptive account despite their many articles on originalism. Judges may change known expected applications of constitutional text if facts change or even, in Solum's words, if "beliefs about facts change." But as Vermeule argues so well, once that move is allowed, given how fast times change and how old our Constitution is, that form of originalism has no limiting force in real cases decided by real judges. As I wrote in 1998 and still believe today:
There have been numerous law review articles and books written in the last twenty years devoted to the subject of originalism and constitutional interpretation. This focus on a question largely irrelevant to how the Supreme Court decides cases is truly unfortunate. As Professor Machen told us a long time ago, an ever-changing society governed by a vague foundational document will require judicial decisions that apply new circumstances to old rules. History and custom will be important to that application, but not decisive. Judges do not have to choose between a Living Constitution and the dead hand, but they must inevitably make difficult judgments about competing institutional roles and fundamental rights and liberties. Those are the truly hard questions of constitutional law, and it is time that we face them without the baggage of an old and unhelpful debate about the relationship between original meaning and constitutional interpretation.
Originalism has no real purchase in the cases that we care most about because they involve open-ended constitutional language that calls for judges to make contemporary judgments about circumstances, facts, and perceptions of facts that have changed in numerous ways since 1791 or 1868. Arthur Machen knew this in 1900 and most of us know it today. If originalism is our law, as Baude and Sachs say, that's only because their version of originalism is effectively living constitutionalism. In order to save originalism, they had to destroy it.