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07/23/2019

Rick Hills on Baude & Sachs on Originalism
Michael Ramsey

At Prawfsblawg, Rick Hills (NYU): What makes history constitutionally relevant? Some Reservations about Baude and Sachs’ view of the past.  Here is the introduction:

I am alternately puzzled and exasperated by originalist scholars’ attitude towards eighteenth century history. On one hand, they flyspeck old documents unrelated to specific constitutional texts to figure out what those texts mean. (Consider, for instance, Jennifer Mascott’s painstakingly erudite analysis of how eighteenth century writers used the noun “officer” in various corpora of texts to figure out what “Officer of the United States” means in Article II). On the other hand, they mostly ignore the great partisan disputes about banks, monarchy, natural aristocracy, religion, and public debt and the like, that motivated these texts. The historical past in legal scholarship on “original public meaning” has this dignified but misleadingly monotonous look of a white marble Classical Roman statue — misleading, because those statues were originally painted in life-like colors that only washed away with the passage of time. Colorlessly apolitical constitutional interpretations, like colorless Classical statues, are just historically inaccurate.

William Baude and Stephen Sachs have helped me think about this attitude towards history with a typically lucid and analytically deep essay. They argue that lawyers should focus on “legal doctrines and instruments specifically, rather than intellectual movements generally” when trying to figure out what past laws mean, because our law today “grants continuing force to the law of the past,” not the cultural or intellectual movements of the past. Sure, cultural movements, partisan motivations, ideological fights might be the cause of those old legal doctrines, but our modern law “typically” does not incorporate these extra-legal forces. Instead, it incorporates only “legal doctrine (treatises, court cases, and so on).” Baude and Sachs cite Hart’s Rule of Recognition to support the idea that the “internal point of view” leaves out the political, partisan, cultural motivations for the law: In their view, modern law incorporates only this “internal point of view” of the law, not the law’s “external” causes.

As I explain after the jump, I think but am not quite sure that I disagree with almost every part of their argument. Baude’s and Sach’s essay is, however, by far the most careful effort so far to justify a scholarly practice that has previously been followed but not much defended by originalists. For those readers who want the short version, here are my two bones to pick. First, Hart’s “internal point of view” nowhere suggests that the law consists only of “legal doctrine.” Instead, ideological, cultural, even partisan platforms found outside conventional law sources, can just as easily be the basis for an elite’s “internal” consensus of what “law” is. Second, the ideological purposes and functions of constitutional language must be part of legal interpretation of constitutional text from the outset, because (as Ryan Doerfler has persuasively argued) the pragmatic function of words is just as much part of their meaning as semantic usage.

A thoughtful, insightful discussion, plus some very high level responses in the comments, including by Stephen Sachs, Asher Steinberg and Ryan Doerfler.   I especially endorse this part of Professor Sachs' comment:

Focusing on the politics, though, seems to miss the point of all the politicking. Getting to "dry legal analysis" is exactly what political bar brawls are *for*. Interest groups have knock-down drag-out fights in Congress, spending plenty of good money on lobbyists, just so that they can influence dry formalisms like "which words are put into the statute and which aren’t." Victory in the political fight is having your super-controversial policy views become the durably *less*-controversial lawyers' understanding of some lawmaking event.

Doing that dry legal analysis doesn't mean ignoring the bar brawl; it just means valuing the bar brawl for what it tells us about the legal events, and not the other way around. We've written before (in our "Law of Interpretation" piece) about how looking at legal texts solely as pieces of language can get things wrong. Of course we'd need to know what was going on in early-20th-century politics to properly read the Seventeenth Amendment as leaving Senate terms intact, and not as proposing a temporary six-year trial balloon ("The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years..."). But suggesting that the Seventeenth Amendment codified the political aims of the Progressive movement generally, and not just certain individual changes that managed to get through the ratification process, would also be a mistake.

So non-doctrinal sources are fine, and indeed unavoidable. But they can also be misused; these are issues of weight, not admissibility. Marshall did talk a lot about principles, but as evidence of what rule the Constitution had recently provided, not as free-standing norms that operate independently of its historical content. And while the contending sides sometimes compromised by fudging it, not everything that looks ambiguous to us was equally ambiguous back then--and when it was, it's our job to apply the fudge as best we can. As we note in the paper, "Ordinary business contracts are hardly 'air-tight,' ... but we write them anyway: the parties’ choice to adopt an integrated agreement is a choice to rest their legal relations on contested inferences drawn from a single piece of text."

I'll add this, in partial defense of originalists' focus on legal text over "great partisan disputes about banks, monarchy, natural aristocracy, religion, and public debt and the like, that motivated these text."  First, I think it is not true that originalists generally ignore the "great partisan debates."  (For example, an overwhelming volume of analysis just of the bank debate has been presented just at the San Diego originalism works-in-progress conference just in the last few years.  Perhaps Professor Hills should come out to San Diego and see what we do.)  But that point aside, I think originalists (again speaking generally) recognize that one can only go so far with the great partisan debates.  As Professor Sachs says, ultimately the debates were reduced to text.  Sometimes the text is clear and sometimes not, but resort to the partisan debates isn't likely to help that much.  To defend Professor Mascott's paper, for example: the question she takes up is the meaning of "officer of the the United States."  Now maybe Professor Hills would find something in the "great partisan debates" that helps us answer that question, but I doubt it.  On points of fairly narrow textual meaning, at least, a fairly narrow textual focus seems appropriate. 

And even on broader, more ideologically contested points, it is after all the text that most originalists regard as decisive.  Take the issue to the declare war clause, which I've written extensively about.  There were a range of views about how strong the executive should be, and to be sure one should sort through those in evaluating how the Constitution allocated the war initiation power; but ultimately the original allocation is the one reflected in the text, so one needs to look at the actual words of the text and how those words were commonly used at the time.  I'm not sure how Professor Hills would do it differently.