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02/06/2019

Eric Segall on Baude & Sachs on Originalism as Our Law
Michael Ramsey

At Dorf on Law, Eric Segall: Originalism off the Ground.  From the beginning:

Professors Will Baude and Stephen Sachs are at it again. They have continued their quest to convince the world that originalism is, indeed, our law. Their new article is "Grounding Originalism."

In previous articles and essays, Baude and Sachs have set forth a positivist account of constitutional law, arguing that our law is the Founders' law until properly amended or changed. They have also claimed that our Founders' law allows judges to change old applications of legal principles if new facts require such changes, as long as the constitutional provision at issue was intended, designed or originally meant to allow judges to do just that. In other words, cases such as Brown v. Board of Education and Obergefell v. Hodges, which most scholars categorize as non-originalist, may properly be classified as originalist decisions if, and only if, the 14th Amendment's original meaning embraced evolving applications by judges (an issue that the authors surprisingly have so far ducked).

Baude and Sachs have also argued that lawyers, law professors and judges often criticize or praise Supreme Court decisions based on originalist criteria and make originalist arguments to the Court, thereby demonstrating that our legal vocabulary is originalist, which shows that originalism is our law. In their newest piece, they point to scholarly and lawyerly debates over the Emoluments Clause and what that word originally meant to show the large role that originalism plays in constitutional interpretation. Why argue so ferociously over originalist evidence if originalism isn't our law (well maybe to hide the value judgments that will ultimately decide the case)?

"Grounding Originalism" also contains much discussion of Hartian philosophy and rule of recognition issues, which some critics have used to critique their work. But the authors concede that "the more enduring dispute between us and many of our critics is far more banal: it’s a simple empirical disagreement. Maybe our beliefs seem odd, not because there’s anything wrong with our legal theory, but simply because other readers don’t see how our existing legal practice grounds a form of originalism." This is where I come in.  ...

And from later on:

 The real question is how much of a role originalism actually plays in Supreme Court decisions. ... [M]y recent book spends considerable ink showing not much. The authors don't wrestle with those of us who have documented how little text or history actually matters to the Court. In "Grounding Originalism," Baude and Sachs respond to Professor David Strauss' compelling descriptive account of common law constitutionalism not by wrestling with the long list of cases he says support his theory but by suggesting Strauss admits his account is odd because it is “not [one] we usually associate with a written constitution, or indeed with codified law of any kind.” Yet, Strauss maintains he is correct, so I'm not sure what this response adds. Many of us think the Court's behavior across a spectrum of issues and practices is "odd," but we describe the Court we have, not the one we want.

(Thanks to Mark Pulliam for the pointer).

RELATED:  D.A. Jeremy Telman (Valparaiso University Law School) has posted this review of Eric Segall's book Originalism as Faith on SSRN: Originalism as Fable (Hofstra Law Review, forthcoming).  Here is the abstract: 

Eric Segall’s Originalism as Faith provides both a history of the originalist movement in constitutional interpretation and a critique of that movement from the perspective of legal realism. This Review Essay summarizes Segall’s main argument: as originalism has abandoned deference to the political branches, it has become indistinguishable from its nemesis, living constitutionalism. Emptied of substance, originalism becomes nothing more than an expression of faith. Segall makes his argument very convincingly, evidencing both his knowledge of originalism in all its variants and his mastery of constitutional doctrine.

This Essay offers two ways in which Segall’s exemplary work might be supplemented. First, it teases out the various meanings that “faith” can have in this context, ranging from quasi-religious belief to myth to ideology to political credo. Second, it offers two alternative narratives as supplements to Segall’s legal realist critique. Originalists insist that their approach has “bite,” which they contend distinguishes it from unprincipled living constitutionalism. In the alternative, Jack Balkin reconciles originalism and living constitutionalism. Legal decision-makers, following his “living originalism,” may be legal realists, but their construction of the Constitution must be constrained by their duties of good faith and fidelity to the Constitution.

Originalism with bite and living originalism provide theoretical responses to Segall’s challenges, but their positions must also accord with the reality of constitutional adjudication. Segall challenges originalists to reconcile their faith in unelected judges with a Constitution designed to provide governmental accountability through democratic processes. If they cannot do so, originalism is not a true account of our judicial processes but a fable designed to disguise a new version of legislation by the judiciary as the neutral application of legal rules.