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Two-and-a-Half Cheers for Baude and Sachs' Positivist Originalism (Part 2)
Will Foster

This is the second of two posts discussing Will Baude and Stephen Sachs’ positivist originalism, as explicated most recently in their article “Grounding Originalism.” My first post defended Baude and Sachs’ thesis (that a form of originalism is “the law” as a matter of social fact) against a powerful recent critique by Eric Segall entitled “Originalism Off the Ground.” In this second installment I wish to note some concerns I still have about Baude and Sachs’ project. 

First, earlier I characterized Baude and Sachs’ view as being that the original meaning of the Constitution is the ultimate criterion for constitutional law. However, a more precise statement of their current view is that they believe Founding-era law is the ultimate criterion for constitutional law (they have thus called their view “original-law originalism”) (Grounding, p. 1457). To succeed in their positivist quest, therefore, Baude and Sachs must prove that we really accept the Founders’ entire law (plus lawful changes) as binding. However, it could conceivably be the case that many Americans merely accept as law the “thin” original semantic meaning of the words found in the text, and do not care about the legal rules the Founders would have used to clarify vague provisions (perhaps most people think it’s fine to impose, say, Dworkinian moral readings so long as the text is not completely contradicted). Or maybe many Americans treat as controlling the Framers’ intended meanings, not the “original law” per se. Indeed, people don’t usually present originalism as a theory of lawful changes; they present it as a theory of meaning (whether derived from public meaning or subjective intentions). On balance, though, I think Baude and Sachs probably have the better view: That original interpretative rules do matter. For example, my intuition is that if irrefutable historical evidence were discovered that the Founders actually intended the Constitution’s text to be completely and entirely ignored after 20 years, then everyone would start ignoring the text, even the most die-hard “textualist” originalists. That said, the matter may deserve further study. 

Second, Baude and Sachs’ definition of what counts as an originalist argument, although in many ways quite sensible and attractive, is so capacious that it seems to swallow nearly every possible argument that someone might make in American constitutional law. Consider, for example, Sachs’ example of a non-originalist argument: “Suppose someone wanted to argue for the Reynolds [v. Sims] rule … [but] conceded that equal apportionment was not the law at the Founding, that it was not validly adopted in 1868, that it does not follow from applying rules to changing facts, that the Court had not been authorized to impose the rule on its own, that its decision does not deserve respect as a matter of stare decisis (or any other doctrine finding its roots in the Founding era), and so on. They just think, notwithstanding all this, that Reynolds is still the law … Whatever else you might say about that position, it isn’t originalist” (Sachs, p. 866).

 The definition of an originalist argument Sachs is using here is quite broad, to put it mildly. Through their “positive turn” in originalist scholarship, Baude and Sachs say they are trying to move away from the sorts of “conceptual” arguments about why originalism is essential -- e.g., the argument that originalism is the only coherent way to run a legal system based on a written constitution. Rather, Baude and Sachs treat originalism as a contingent result of the (potentially unique) way America’s legal system works. However, because their definition of an originalist argument is so broad it seems likely that most other countries also use lots of originalist arguments in their legal systems. So presumably they are originalist too. It is difficult for me to imagine how any remotely sensible legal system could not be originalist in the sense Baude and Sachs describe. (Baude has suggested some real-world possibilities (Baude, pp. 2401-02), but I remain a bit skeptical.) 

Under Baude and Sachs’ paradigm, it appears virtually any sort of reasoning the Supreme Court might use can be described in fundamentally originalist terms (although it might not be correct originalist reasoning as a historical matter). For example, David Strauss could argue that his common-law constitutionalism derives from the Founders’ law because, he could contend, the common-law method was known and expected at the Founding. Even an argument like the following one (only tangentially related to the constitutional text) would apparently be originalist: A primary goal of the Founding Fathers in enacting the Constitution was to promote happiness. Teddy bears promote happiness. Therefore, the federal government is constitutionally obligated to provide every citizen with a free teddy bear. To be sure, this might not be a very good originalist argument, because there is no historical support for it, but this change in nomenclature still marks a major shift from when the argument would not be considered originalist in any way, shape, or form. Chris Green seems to wholeheartedly accept the implications of a broad definition of what counts as an originalist argument, writing that “[b]y my lights, all 9 [Supreme Court] justices are originalist … Some are more explicit, but none of them has repudiated the commitment itself, which would require resigning from office.” I do not believe Baude and Sachs have explicitly stated whether they agree with that statement, but I cannot see any reason why they wouldn’t.

That sort of rhetoric would seem to render incoherent the frequent dichotomy drawn, particularly by conservatives and libertarians, between (ostensibly) principled originalist judges and (ostensibly) activist living constitutionalist judges. If most or all judges are originalist, then the difference between, say, Neil Gorsuch and Merrick Garland is essentially a difference in degree -- not, contrary to what is often assumed, in kind. In other words, the difference would be between good originalists and not so good originalists, rather than between originalists and non-originalists. (To be clear, I am not necessarily implying that Gorsuch is a better originalist than Garland; indeed, I suspect there are even some self-proclaimed originalists who would take the contrary position.) 

In a prior blog post, Segall has put it this way: “If judges are already deciding cases in an originalist fashion … then why the huge political and academic outcry for President Trump (really Leonard Leo on leave from the Federalist Society) to appoint originalist judges as if that would be a serious break from tradition?” I am not sure if I am entirely comfortable with the conclusion that the difference between Merrick Garland and Neil Gorsuch is merely one between different types of originalists. I am thus inclined to sympathize with Lawrence Solum’s statement that “the failure to draw a line between originalism and living constitutionalism engenders conceptual confusion and strong metalinguistic resistance” (Solum, p. 1277). Indeed, “the view that living constitutionalism is inconsistent with originalism … captures an important feature of the mainstream of constitutional discourse” (Solum, p. 1281). Chris Green has suggested on this blog the term “meta-originalism” to describe original-law originalism, “because it can encompass those who think that we have always had a common-law, intergenerationally-authored Constitution.” That all being said, however, I am not yet entirely sure whether Solum’s (or Green’s) preferred definition of originalism is any better than Baude and Sachs’ definition, despite the concerns the latter may raise. And indeed the difference between the definitions may not really be all that important, given that (in my view and that of most originalist scholars) the Founders’ law affirmed fixation and constraint with respect to the text’s communicative content. So even if “originalism” is properly limited to the communicative content/sense definition, it may be that this “originalism” is simply a straightforward corollary of Baude and Sachs’ “meta-originalism.” 

Another question about original-law originalism that I’m still struggling with is this: How can it be legitimate to rely on the law’s supposed “deep structure” to radically change current day-to-day practices? As Richard Primus has noted, the fact that people might accept originalism done badly (e.g., Obergefell’s unsupported conclusion about the original meaning of the Due Process Clause) hardly proves that they’d accept it done well. Even if people have a vague sense that the original meaning is the law, they might not be willing to do any serious historical research to find that original meaning. Baude and Sachs suggest that the sort of motivated reasoning found in half-hearted appeals to the Founders “still admits the force of originalist arguments that might wake us from our dogmatic slumbers” (Grounding, p. 1487).  “The deep structure of our legal system is a question of present law, not a prediction of future behavior,” Baude and Sachs say (Grounding, p. 1476). Perhaps, but as a practical matter the persuasive power of appeals to original meaning in our current culture seems quite weak (i.e., even if departures from original meaning are theoretically subject to originalist refutation, it’s not clear that this can actually happen very often). For example, most Supreme Court justices seem to ignore Justice Thomas’ solo originalist concurrences and dissents; if they were genuinely interested in finding the original meaning, it is hard to understand why they would not provide any citation or response to Thomas’ opinions in their own opinions. Then again, perhaps thinking about Supreme Court justices (most of whom are rather old and have well-settled beliefs) is not a representative example; perhaps appeals to original meaning would have greater persuading power among younger lawyers and scholars. On balance, I am still inclined to side with Baude and Sachs on this question, but it is a very difficult one. 

Finally, it is important to consider the implications of the thesis that originalism is our law for judicial conduct. The optimistic view is that because virtually all judges are originalist, everyone is essentially on the same team, trying to do the same basic task (kumbaya!). The pessimistic view is that, because most (all?) judges are originalist but some presumably are not very good originalists, it might appear that some judges are basically incompetent at applying their own methodology (and perhaps should therefore be impeached). That is a rather startling conclusion, and perhaps there is some way to avoid it, but it does seem that characterizing interpretative methodologies as law (contra, e.g., Asher Steinberg) would have some consequences for how we view the Supreme Court (and other judges). Under a pluralist “modalities” conception of constitutional law, a certain amount of methodological disagreement can be tolerated. I am not sure the same can be said if originalism is our exclusive law. (To be sure, I am not necessarily saying this is a bad thing.) 

So, to sum things up: I agree with Baude and Sachs that the framework of positive law is the best way to justify originalism, and I believe that their project basically succeeds. However, as to the precise outlines of their theory I have a few concerns that I’m still struggling with, some semantic and some more substantive.