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Two-and-a-Half Cheers for Baude and Sachs' Positivist Originalism (Part 1)
Will Foster

In a new article entitled “Originalism Off the Ground,” Eric Segall inveighs against the efforts of scholars Will Baude and Stephen Sachs to prove that originalism is currently America’s constitutional positive law. “Our actual law,” Segall contends, is driven by “non-originalist values” (Segall, p. 102). Segall’s writing is, as always, thought-provoking and incisive. But although I have a few reservations about Baude and Sachs’ project, overall I am not convinced that Segall’s attack on positivist originalism is as devastating as he hopes. 

Segall’s own descriptive account of constitutional law is that “[t]here is substantial data … that strongly suggest[s] that where judges have legal discretion, their values, experiences, and politics determine the sum and substance of our law” (Segall, pp. 101-02). To a large extent it is difficult to disagree with that assessment. But is Segall’s descriptive account the right kind of descriptive account if we want to figure out what the law requires? I do not believe so, for the reasons Baude and Sachs give in the article to which Segall was responding, “Grounding Originalism” (see particularly the Al Capone thought experiment on page 1469). 

So what is our current law? Although this is not an easy question to answer, I agree with Baude and Sachs that current social practice points toward a form of originalism in which “the original meaning of the Constitution is the ultimate criterion for constitutional law, including of the validity of other methods of interpretation or decision” (Baude, p. 2352). (Actually, Baude and Sachs’ view is a bit more nuanced than that, but for now this definition will work best.) Assuming (as most do) that stare decisis was accepted by the Founders, this form of originalism permits judges to use a doctrine of precedent. 

Segall correctly notes (and Baude and Sachs do not deny) that the American people have accepted many Supreme Court rulings departing from the Constitution’s original meaning (Segall, p. 104). But, as Larry Alexander insightfully notes, “[The people] have generally acquiesced in those departures, even ones that they have disliked. But have they been aware that those departures were departures?” (Alexander, p. 24). Like Alexander, I believe the answer, on balance, is no. If I’m right, then those departures remain “vulnerable to originalist refutation,” at least in theory (Grounding, p. 1481). As Baude and Sachs have argued elsewhere at much more length, even if it’s true that the Supreme Court has frequently departed from the Constitution’s original meaning (Segall, pp. 103-04), that does not refute the thesis that the “deep structure” of current law is originalist. (Baude and Sachs’ evidence is summarized in a helpful seven-point list on pages 1477-78 of “Grounding Originalism.”) Segall responds that “the ‘deep structure of the law’ does not resolve cases, judges do” (Segall, p. 113). This is true, but largely irrelevant. The natural world does not conduct experiments, scientists do; yet no one describing the scientific method would say that scientific inquiry is focused mostly on observing the practices of scientists. 

Segall does correctly note that “[c]onstitutional law comes with a heavy mix of legal and policy content” (Segall, p. 107). This is a very powerful point. As Segall puts it, why shouldn’t we say “policy arguments are our law”? (Segall, p. 107) Arguments like those Segall describes -- “The Justices’ abortion decisions were wrong because the fetus is a human being,” “Citizens United increases the role of money in politics,” etc. (Segall, p. 106) -- do indeed appear to be commonplace in our culture. Perhaps this means the living Constitution has won, and the document’s meaning depends on the latest popular sentiments. Ultimately, however, I am not persuaded by Segall’s argument on this point. First, there may be a relevant distinction between the informal way lay people talk about the law and the actual, formal law. Second, it is not clear that even the general public views the law as reducible to partisan preferences, even if at a superficial level that may appear to be so. Take Citizens United, for instance. I would be very surprised to find someone who A) believes that the historical argument in Justice Scalia’s concurrence and the precedential analysis in Justice Kennedy’s opinion were spot-on but B) describes Citizens United as “wrongly decided.” I think when people make arguments that sound a little like “The case was wrongly decided because the practical consequences were so bad,” what they really mean is “The case was wrongly decided as a legal matter, and that is doubly unfortunate because the practical consequences are so bad.” Now, on the legal aspect, members of the public often simply defer (explicitly or implicity) to the statements of particular judges or law professors that they side with politically and therefore identify with. That is, I think, why it might seem at first blush like the standard of legal correctness in America has become good political consequences. 

A similar reply can be made to those who might argue that our culture treats Supreme Court decisions as ultimate law (Segall, pp. 109-10). It is undoubtedly true that many Americans say things like “Roe v. Wade secures a constitutional right to abortion.” However, I think most people who support a right to abortion probably believe or assume that Roe was a correct interpretation of the Due Process Clause’s original meaning, particularly given the powerful forces of confirmation bias and motivated reasoning. (To be clear, I express no personal opinion here as to Roe’s merits.) Even those who do not believe Roe was correct as an original matter likely still believe a doctrine of stare decisis is permitted by Article III’s original meaning, and therefore do not see themselves as violating the Constitution’s original meaning when they adhere to Roe. Admittedly, most people don’t explicitly draw the sort of connections to original meaning I’m making here. Still, I think the connections are present, even if they are sometimes obscured in a discourse chock-full of heuristics. (Sachs’ 2014 article “The ‘Constitution in Exile’ as a Problem for Legal Theory” has some excellent discussion along these lines on pages 2276-78.) 

I believe even the Supreme Court justices not typically considered originalist actually believe their decisions are in accordance with original meaning. For examples of them saying this explicitly in opinions, see Ginsburg’s NFIB opinion, joined by Breyer, Sotomayor, and Kagan; Stevens’ McDonald dissent; Stevens’ Roper concurrence, joined by Ginsburg; and Kennedy’s Obergefell opinion, joined by Breyer, Sotomayor, Ginsburg, and Kagan. Ginsburg and Kagan have also explicitly described themselves as “originalists.” Senator Dianne Feinstein’s statement during the Gorsuch hearings suggests that she too looks to the Founders’ authority: She believes the Constitution is a “living document” in part because to “evaluate our constitutional rights and privileges as they were understood in 1789” would in her view “ignore the intent of the Framers that the Constitution would be a framework on which to build.” (Incidentally, I seem to recall seeing a fellow group of students at my high school make a similar argument in a paragraph of their Civics paper this spring -- the Constitution is a living document precisely because that’s what the Founders allegedly wanted.) 

The historical claims made in favor of evolving interpretations must be put to the test, of course (cf. Segall, pp. 105-06). But the fact that they are made reveals the deep originalist strain in our constitutional culture. The fact that “because the Founders wanted us to” counts as a valid reason -- perhaps even a necessary reason -- to support a particular interpretative philosophy is a remarkable but unmistakable feature of our legal culture. (Perhaps this feature might be in some ways normatively undesirable, but it’s clearly present.) I have expressed some tentative sympathy for Baude and Sachs’ originalism on this blog in the past, and after reading their more recent work and thinking through some of the problems myself, I have come to agree wholeheartedly with their essential thesis. I believe current positive law requires judges to be Baude/Sachs-style originalists, and also that this fact is the best reason to be an originalist. It seems to me that some form of originalism is the only way to adequately account for the enormous cultural salience of the Constitution’s text. Ultimately, our constitutional practice is rooted in the choices the Founders made, to write certain things down, with certain meanings, and not other things. I am now a complete convert to positivist originalism. 

Well, almost. I do have a few reservations about Baude and Sachs’ project. I will discuss those in a second post coming soon.