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01/02/2016

Ian Bartrum on Positive Originalism
Michael Ramsey

At Prawfsblawg, Ian Bertram comments on Will Baude's article Is Originalism Our Law?  From the discussion:

Baude’s essay recognizes that this claim [that originalism is our law] seems—at the very least—counterintuitive, and certainly contradicts the traditional narrative of Supreme Court practice over the last century. After all, the primary complaint of “old school” originalists like Raoul Berger, Robert Bork, and Antonin Scalia has been that the Court has abandoned the “law” (to wit, original meaning) far too often—in cases like Blaisdell, Brown, and Roe—and has, in effect, usurped the law-making authority. How can it be, then, that this very Supreme Court practice demonstrates that original meaning is our positive law?   Baude’s tactic is to concede that “old school” or “exclusive” originalism, which claims that only original meanings count as “the law,” does not reflect the Supreme Court’s practice; but a much broader “inclusive” originalism  actually does describe what the Justices think they are up to. This is consistent to some degree with New Originalism—Larry Solum has made some pretty rigorous arguments in favor of inclusive originalism as positive law—but Baude’s version is certainly the most inclusive to date.

Essentially, Baude claims that the Court’s practice is presumptively originalist, and that the Justices will move to other interpretive strategies only when originalism has, for one reason or another, failed to provide an answer.   Even then, the Court strains to provide suitably originalist kinds of justifications for its decisions. Baude’s biggest challenge, of course, is to show that the ostensibly non-originalist opinions that litter the U.S. Reports can be fit into his inclusive account.  He tries to accomplish this in a couple ways. First, he argues that the many apparently non-originalist cases—Blaisdell, Brown, Miranda, etc.—either make clear efforts to get at original meaning, or at the very least, do not expressly reject originalist reasoning. Second, other cases that seem clearly at odds—Roe and the gender discrimination cases—actually did do originalism, they just did it badly. While Baude does an admirable job bringing all of these decisions into his paradigm, I still cannot imagine for one second Berger or Bork signing on. This is, in other words, a decidedly different sort originalism.

In the comments, Eric Segall comments:

I have almost finished a formal response to Will, and Ian I agree with you completely. The last paragraph reads thus (in draft): "If “inclusive originalism” is broad enough to justify the Court’s decisions from Brown to Roe to Heller to Oberegell, then it is irrelevant as a doctrine for judges. If “inclusive originalism” does not accurately describe those cases, then it is inaccurate. At the end of the day, this new turn to originalism as “our law” is nothing more than taking the Court’s decisions as “law” as a matter of faith because logic, precedent, and legal reasoning simply can’t get the job done."