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08/19/2019

Charles Barzun: Constructing Originalism (with Comments from Will Foster)
Michael Ramsey

I was going to give the Baude/Sachs thesis a rest for a while, but...

Charles L. Barzun (University of Virginia School of Law) has posted Constructing Originalism or: Why Professors Baude and Sachs Should Learn to Stop Worrying and Love Ronald Dworkin (19 pages) on SSRN.  Here is the abstract: 

This Essay responds to Professors William Baude and Stephen Sachs’s recent article, Grounding Originalism, in which they offer replies to various criticisms I and others have made of the so-called “positive turn” in constitutional originalism. I argue that their replies still fail to address the core underlying problems plaguing their attempt to “ground” originalism in the legal positivism of H.L.A. Hart. In fact, their somewhat creative interpretation of Hart’s theory demonstrates even more clearly than did their earlier work that their true jurisprudential ally is the anti-positivist Ronald Dworkin.

Thanks to Will Foster for the pointer.  He comments: 

Prof. Barzun suggests in Part II of this fascinating paper that judges do not practice original-law originalism because "courts [do not] explicitly or implicitly demand (even if only indirectly)" that "constitutional and interpretive rules and methods trace their pedigree back to the founding" (p. 4). Barzun thinks many (although perhaps not all) judges "would not care much at all" if it turned out that "the customary features of an area of law developed slowly throughout the nineteenth century" and had no Founding-era pedigree (p. 7). I am not sure that is correct, and the following (admittedly fanciful) thought experiment shows the reason for my skepticism. Let's suppose the original Constitution of 1787 contained the following clause: "Nay Judgeth shalt maketh useth of any Precedent in any Opinion on a constitutional Questioneth." (I use hilariously archaic language here in order to make sure original meaning, and not modern meaning, is doing the work in the hypothetical.) Let's assume there are several dozen extant Founding-era writings from notable figures showing that this clause was understood to ban judges from relying on case precedents when construing constitutional provisions. Now, if stare decisis somehow managed to "develop[] slowly" over time among many judges, I find it hard to believe that "a good many [people] would not care much at all" (p. 7). I think virtually everyone would see stare decisis as an unlawful usurpation, precisely because most people would see that it contradicted the original meaning of the constitutional text. If people wanted to preserve the use of precedent in constitutional cases, they would advocate for an Article V amendment. 
 
Perhaps I am wrong about this. But if I'm right, then it seems Barzun's argument is weakened. In my view, the apparent strength of Barzun's argument in Part II of the paper comes from smuggling in the epistemic difficulties inherent in becoming convinced that some feature was or was not part of the Founders' law. It's often really, really hard to get people to change their deeply held beliefs, and that applies no less in the constitutional context than anywhere else. But that is not inconsistent with the further proposition that, if and when someone does change their beliefs about the content of the Founders' law, they will change their views about the propriety of current judicial doctrine. (It's worth noting that there are at least some real-world examples of people changing their constitutional beliefs due to new historical evidence -- just look at the Second Amendment, which even some liberal professors began to embrace as an individual right in the late 20th century.) 
 
Barzun's article also contains some more technical discussion of H.L.A. Hart's positivist philosophy. Interestingly, Barzun interprets Baude and Sachs as conceptualizing original-law originalism as a subordinate legal rule, and not "itself part of our rule of recognition at all" (p. 7). I confess I had always thought original-law originalism was itself the rule of recognition under Baude and Sachs' theory. Barzun, however, thinks Baude and Sachs believe "the rule of recognition in the US is what Baude and Sachs call 'the official story' of American law, which includes things like 'We treat the Constitution as a legal text, originally enacted in the late eighteenth century'" (p. 7). Yet, as Baude and Sachs state in their "Grounding Originalism" abstract, "our system’s official story is that we follow the law of the Founding, plus all lawful changes made since." The official story, in other words, is that we practice original-law originalism. (The fact that we treat the Constitution as an 18th-century legal text serves, along with various other facts, as evidence that establishes the official story of original-law originalism.) And I think legal officials do seem to treat original-law originalism as the rule of recognition, even if they often apply this rule incorrectly. 
 
Finally, Barzun includes some fascinating discussion of positive law in Nazi Germany, and also makes the provocative claim that Baude and Sachs' theory shares more of an affinity with Dworkin than Hart. Although I do have some thoughts on these matters, I will leave it to Baude and Sachs to respond, as I suspect they will do in their article "The Official Story," apparently coming "soonish." Ultimately, though I'm skeptical of some of Barzun's contentions, I still wholeheartedly recommend his important and delightfully readable article!