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10/23/2015

Asher Steinberg on Will Baude on Positive Originalism
Michael Ramsey

At the promising new blog The Narrowest Grounds, Asher Steinberg: Why it Doesn't Matter if the Court's Opinions Are Originalist - A Comment on Baude on Originalism (commenting on this paper by William Baude).

It's a long and sophisticated post that can't be fully summarized (except to say that it basically argues (a) originalism isn't our law; and (b) even if it is, so what?).  On the latter point, here is the conclusion, which I think is pretty powerful:

Suppose that everything Baude argues up to this point is right - that originalism is our law, that judges therefore have a duty to be originalist, and that they can only deviate from originalism if they justify the deviation.  So what?  As I understand it, the whole point of the positive turn is to say that the fact that originalism is the law is a powerful reason to do originalism, and to shift the burden to non-originalists to justify alternative methodologies.  But how heavy is that burden?  Baude doesn't say.  Is it something like the burden to overcome stare decisis, or is it just the burden of making a forceful argument?  If the latter, it must be said that non-originalists have all kinds of forceful arguments for rejecting originalism.  They may not be right, but they're serious enough to cause people like Baude to despair of proving originalism right normatively or conceptually and to make the positive turn.  

It's difficult, then, to see why it matters if there's some burden on non-originalists to justify a change; they can just make the same arguments against originalism that they've been making for the last 40 years.  If one were to claim that the burden's a high one, that claim would be inconsistent with the general positivist tenor of Baude's argument, as I'm aware of no actual American legal practice that forbids changes in interpretive methodology absent compelling justification.  To the contrary, it is a practice of ours to undertake rapid and cataclysmic change in interpretive methodology without always giving very much reason, particularly in the world of statutory interpretation.  In any event, once a change is made, rightly or wrongly, positivism will call that change the law.  Ultimately, then, hanging a burden on non-originalists to justify non-originalism doesn't do much to avoid normative and conceptual debates over interpretive methodology.

I have a somewhat similar reaction to the paper, albeit from a slightly different perspective.  Suppose it were the case that non-originalism were our law?  Non-originalists like to claim it is, and that therefore we must accept it, in a sort of mirror image of Professor Baude's paper; I think they're wrong as a descriptive matter, but let's assume they're right on the first point.  Would that mean originalists have to concede defeat?  Of course not.  If the Court's current interpretive practices are normatively bad, we should change them.  The same goes for originalism.  Whether it's the law or not (or, more precisely, whether it describes Supreme Court practice or not), it has to justify itself normatively or it should be abandoned.  Part of its justification might be (if true) that it's something we've consistently done, but (like Steinberg) I think that carries minimal weight.

RELATED:  At Balkinization, Stephen Griffin also has some thoughts on Professor Baude's paper (among other things) in the concluding post in his series on orignialism and non-originalism.