In the current issue of the Columbia Law Review sidebar, Richard Primus (Michigan): Is Theocracy Our Politics? (116 Colum. L. Rev. Sidebar 44 (2016)) (responding to William Baude’s article, Is Originalism Our Law? (115 Colum. L. Rev. 2349 (2015)). Here is the introduction:
In Is Originalism Our Law?, William Baude has made a good kind of argument in favor of originalism. Rather than contending that originalism is the only coherent theory for interpreting a constitution, he makes the more modest claim that it happens to be the way that American judges interpret our Constitution. If he is right—if originalism is our law—then judges deciding constitutional cases ought to be originalists.
But what exactly would the content of that obligation be? Calling some interpretive method “our law” might suggest that judges have an obligation to decide cases by reference to that method. But the account of judicial behavior that Baude takes to show that originalism is our law may say less about the norms of judicial decision-making than it says about the norms of judicial discourse. Baude’s essay highlights something significant about the way judges talk, but it is not clear that this way of talking constrains, or ought to constrain, the substance of what judges decide.
Consider, by (partial) analogy to the way that judges talk about the Founders, the way that politicians talk about God. Invoking God is a matter of traditional and broadly accepted practice among senior American political figures. Many politicians probably feel that their role requires them to participate in that practice. But it is not clear that these invocations of God by political leaders reveal a widely held theory of political authority. The fact that senior officeholders speak about God has little bearing on the substance of policymaking, and fortunately so, because there are excellent reasons why the government should not set policy on the basis of theological ideas. To be sure, one learns something about American politics by noticing how politicians speak about God, just as one learns something about American constitutionalism by noticing how judges speak about the Founders. But it might exaggerate matters to describe our politics as theocratic, and it might exaggerate matters to describe our law as originalist.
In Part I of this Essay, I describe Baude’s vision of “inclusive originalism.” In Part II, I ask how well inclusive originalism describes prevailing judicial practice. In Part III, I develop the comparison between the practice of respectful engagement with original meanings in the judicial sphere and the practice of respectful invocations of God by elected officials. The two practices are not entirely the same, of course. But it is worth noting their similarities.
And more from Part I:
Relative to some other arguments for originalism, Baude’s has considerable virtues. It does not rely on hard-to-defend claims about the inherent nature of law, or of constitutions, or of interpretation. It avoids the dead-hand problem because it grounds the authority of original meanings not in actions that occurred long ago but in the practices of the living. Moreover, and by the same token, Baude’s argument for originalism does not rely on the claim that the practices of American constitutional decisionmakers have always been originalist. It requires only that originalism be the way that we do things now. This is a mature way to argue that some set of practices is our law: Look and see what our legal officials actually do.
To succeed, though, Baude needs to be able to survey what our legal officials actually do and describe what he sees as originalism. A different observer might find that task daunting. After all, if you look to see what judges do most of the time in constitutional cases, you will find them applying doctrine. Only rarely does a case turn on the text of the Constitution or an account of original meanings.
To his credit, Baude does not pretend otherwise. He does not claim, that is, that judges actually spend more time plumbing original meanings than observers have previously realized. Instead, he offers a version of originalism in which the fact that judges rarely traffic in arguments about original meanings is compatible with the claim that originalism is our law. He calls this model “inclusive originalism.” Under inclusive originalism, modes of decisionmaking that the Founders would have recognized as legitimate are legitimate. Living as they did in a common-law world, Baude says, the Founders surely accepted the application of judicial precedent as a valid mode of legal decisionmaking. So that form of decisionmaking is in—not on its own bottom but because the Founders accepted it. The same goes for interpretation that tracks the evolving meaning of constitutional language, for the same reason, and for any other modality of argument that the Founders would have considered legitimate.
This is a capacious conception of originalism. Consider, by analogy, what it would mean to describe as “textualist” a theory of constitutional decisionmaking on which judges confronting individual-rights questions should reason about what rights people have without reference to the words of particular constitutional provisions. Given the Ninth Amendment, one can perfectly well argue that the text of the Constitution directs constitutional decisionmakers to reason about rights in nontextual ways. So it could make sense to describe nontextual reasoning as justified on the basis of the text, just as it could make sense to describe a largely common-law process of constitutional interpretation as justified on the basis of a Founding understanding. But someone who described judges making moral arguments about unenumerated rights as practicing “textualism” would not be using the term in a way that captures what textualism usually means in American constitutional discourse
The point here is not that Baude is wrong to call his approach a version of originalism. Nobody owns the term, and Baude tells his readers clearly what he does and does not mean, and his idea shares something important with the broader family of originalist theories: It maintains that facts from the time of the Constitution’s enactment supply legitimacy criteria for constitutional interpretation today. To be sure, Baude’s version of that legitimacy claim is importantly different from the legitimacy claims on offer in some versions of originalism. For Baude, originalism is authoritative only because we accept it as a matter of practice. But my use of the word “only” is meant to contrast Baude’s theory with some other forms of originalism, not to suggest that a legal culture’s acceptance in practice of a theory of interpretation is not a good reason to deem that theory authoritative within that legal culture. If Baude can show that the American legal system operates on the basis of something he describes as “inclusive originalism,” he will not have demonstrated that stronger forms of originalism are “our law,” but he will have made a good case for the thing that he claims to be demonstrating.