Saturday, June 19, 2021
I've been working on a jurisprudential critique of the positivist originalism of Will Baude (left) and Stephen Sachs (right) for a couple of years. It turns out, student editors are not very interested in a critique of positivist originalism -- or at least, not in mine. I have presented the piece in a number of venues, shared it with Baude and Sachs, and sent it to a number of colleagues who know their jurisprudence. Something is missing, but I'm not sure what. So I have uploaded it to SSRN in the hopes that some person interested in the subject will give me the inspiration to work it into a more digestible form. Here is the very dry, just-the-facts, ma'am abstract:
Will Baude and Stephen Sachs have argued that originalism should bind courts because originalism is “our law.” This Article attempts to specify, from the perspective of positive law, what part of our law originalism could be. It does so by identifying three challenges that Baude and Sachs face: a Kelsenian problem, a Hartian problem, and an empirical problem. The Article next considers Andrew Coan’s hypothetical constitutional amendment as a solution. The Article concludes that Baude and Sachs’s argument that originalism is our law remains deficient from the perspective of positive law.
Will Baude is in the process of providing a lengthy defense of his perspective on his podcast, Dissenting Opinions, in conversation with Adam Chilton. I highly recommend it. In fact, it may be the best podcast on originalism I've heard. In Episode 5, Will sets out certain originalist principles, and Adam pushes back. Then, in Episode 6, Adam sets out certain counter-arguments, and Will pushes back. In Episode 7, Will lays out his positivist theory of originalism, and in Episode 8, not yet released, they promise to work through some applications.
A few comments on the series so far, from the perspective of my critique. I have long suspected that Baude and Sachs are not really committed to positivism. In the podcast, Will suggests that he was a convinced originalist on normative grounds but was both dissatisfied with normative defenses of originalism and concerned that the value of returning to originalism might not offset the disruption in settled expectations that such a return would entail. He then surveyed the history of our jurisprudence and became persuaded that, with a few exceptions immediately after the Civil War, during the Progressive Era, and during the Warren Court, our jurisprudence is largely originalist, in his sense of "inclusive originalism" (what it includes is mostly some non-originalist precedent). He and Sachs concluded that originalism would not effect great changes in our law because it already is our law.
Most of my article is about why I think Baude and Sachs do positivism wrong. I did not spend a lot of time on the empirical argument, because that's a huge hill to climb, and I thought that Richard Primus had already made the most important point in his Is Theocracy Our Politics. Baude and Sachs focus too much on rhetoric and not enough on substance. Based on the podcast, it seems like there are three additional problems with Baude and Sachs's empirical claims about our law. First, whole swaths of our constitutional law (especially in the realm of the First Amendment) reference originalism in only the most attenuated ways. Second, when both sides reference original meaning (or intent or method or whatever), one side is often doing so strategically in order to establish that original meaning settles nothing and so we are on our own. It's not clear to me that Baude and Sachs think that original meaning ever runs out. I suppose that issue is of less moment to them because the question for them is not original meaning but original law. But original law is, if anything, less likely than original meaning to settle meaning definitively. Original law is the law of the Founders arrived at using methods of interpretation available at the Founding. As I have argued here and here, courts in the early Republic were methodologically pluralistic. A judge could pick among numerous valid methodologies to arrive at a legal conclusion, and nobody could claim that what the judge was doing was methodologically impermissible or outside "our law."
Third, Baude and Sachs insist that originalism is our law because all judges appeal to original meaning, and precedent is no more important to the liberal Justices than to the conservatives. But that argument is still all on the rhetorical level. In order to show that originalism really binds us and should be given more weight than precedent, Baude and Sachs need to find examples of Justices, committed to originalism, saying something along these lines: "In a prior case, I surveyed materials from the Founding and concluded X. I have since read through the originalist criticisms of my reasoning in that case, and I have concluded that I was wrong as a matter of original meaning. The correct originalist interpretation is Y."
I have never seen a Justice reverse their position in this way. Indeed, I can think of no originalist who thinks that Justice Scalia's opinion in Heller was well-reasoned from an originalist perspective. Most originalists think that Justice Scalia reached the right conclusion, but his reasoning was unsound in ways that could have ramifications for other cases. That was already clear by McDonald, but not a single Justice paid any mind to the originalist critiques of Heller.
I could go on. But enough for now.