Legal Realist Originalism?
By Eric Segall
Earlier this year, Professor Will Baude of the University of Chicago published an essay in the Columbia Law Review titled "Is Originalism Our Law?". He argued that landmark Supreme Court cases such as Home Bldg. & Loan Ass'n v. Blaisdell, Brown v. Board of Education, and Obergefell v. Hodges, which virtually the entire world views as examples of either living constitutionalism, or the pluralistic/common law descriptive theories of David Strauss and Mike Dorf, are actually originalist as written.
Baude argues that these and other important Supreme Court decisions recognized that the constitutional provisions at issue were meant by the ratifiers and/or framers of those provisions to evolve over time. By recognizing that history, the Supreme Court acts in an originalist fashion even when it interprets those provisions in specific and modern ways that would have shocked the ratifiers and framers of those provisions (such as finding that the Equal Protection Clause means that gays and lesbians have the right to marry on equal terms as heterosexuals).
Earlier this year, Professor Will Baude of the University of Chicago published an essay in the Columbia Law Review titled "Is Originalism Our Law?". He argued that landmark Supreme Court cases such as Home Bldg. & Loan Ass'n v. Blaisdell, Brown v. Board of Education, and Obergefell v. Hodges, which virtually the entire world views as examples of either living constitutionalism, or the pluralistic/common law descriptive theories of David Strauss and Mike Dorf, are actually originalist as written.
Baude argues that these and other important Supreme Court decisions recognized that the constitutional provisions at issue were meant by the ratifiers and/or framers of those provisions to evolve over time. By recognizing that history, the Supreme Court acts in an originalist fashion even when it interprets those provisions in specific and modern ways that would have shocked the ratifiers and framers of those provisions (such as finding that the Equal Protection Clause means that gays and lesbians have the right to marry on equal terms as heterosexuals).
In
essence, Baude argues that, as long as the Court uses a mode of interpretation
that the people alive in 1787 would have recognized as legitimate, the
Court is using what he calls “inclusive originalism.” He claims that those folks understood that “fixed
texts can harness what seem to be changing meanings. Though the text may have
originally been expected to apply in a particular way to a particular
circumstance, that does not mean that its original meaning always must apply in
the same way.” Thus, according to Baude,
“originalists can sensibly apply legal texts to circumstances unforeseeable
at the time of enactment,” and come up with results that defy the original expectations
of the people who drafted and ratified those provisions.
On
Friday, the Cornell Law Review On Line published my response
to these arguments (there has also been a short back and forth in the Green Bag between Baude with Stephen E. Sachs and Judge Posner and myself on the same issues). The
thrust of my reply is that Baude's descriptive
account of constitutional law is accurate but labeling that account “originalist”
is obviously misleading if originalism as a term of art is to carry any weight separate
from living constitutionalist or pluralistic theories of constitutional
interpretation. After all, as both Judge Posner and I have shown, both Brown and
Obergefell emphatically and explicitly
rejected using originalist methods of constitutional interpretation.
Because both Professors Baude and Sachs are outstanding scholars who have
contributed to constitutional discourse in substantial ways, I think a fair
question to ask is why they are making, in Jack
Balkin’s words,
“off the wall” legal arguments.
It appears that Baude and Sachs (and many others) are trying to hold on to the
idea that the originalism label can explain and justify much of what the Supreme
Court has done and should do in the future. And, of course,
they are not alone. It has been ten
years since Professor Fleming asked whether
“we are all originalists now,” and only six years since Justice Kagan answered
“yes.” Even President-elect Trump, who of course knows nothing about the
Supreme Court or constitutional law, has promised to nominate originalist judges. And, is there any doubt that a Supreme Court
nominee who explicitly rejected the originalist label in her confirmation
hearings would be rejected by the current Senate?
But just like the man who loudly and proudly proclaims that he “loves all women” probably doesn’t love any one woman, folks who claim that “we are all originalists now” aren’t really
originalists. After all, what Judge Bork, Raul Berger, and Lino Graglia, the original
originalists, actually argued was that judges needed to be tied to original meaning so that their judicial
discretion would be limited. A judge who is allowed under “inclusive originalism” to
apply new constitutional meanings to modern problems solely because most
constitutional cases involve abstract constitutional provisions is deciding
cases exactly like the liberals on the Warren Court did or in ways that non-originalists like Dorf and Strauss think are appropriate. To claim that those liberal judges and scholars are actually originalists in disguise is to make a claim that Bork, Graglia and Berger (not to mention Scalia and Thomas) would strongly deny.
Of course, Baude's and Sach's arguments aren't necessarily wrong just because their "originalism" is different from, or shall I say has evolved from, Bork's and Berger's originalism. But to the extent that their label applies and describes accurately the work of Justice Brennan and Professor Strauss, it is certainly mystifying.
Of course, Baude's and Sach's arguments aren't necessarily wrong just because their "originalism" is different from, or shall I say has evolved from, Bork's and Berger's originalism. But to the extent that their label applies and describes accurately the work of Justice Brennan and Professor Strauss, it is certainly mystifying.
So
what is the point of this entire enterprise? Are Baude and Sachs (not to mention self-proclaimed New Originalists such as Ilya
Somin and Steve Calabresi who also defended the result in Obergefell on an originalist basis) trying to turn constitutional law upside
down (maybe like the critical legal scholars of the 1980's)?
I don’t think so. My tentative theory is that this obsession with
the originalist label, as opposed its substance, derives from a reluctance to
accept the legal realist critique of the Supreme Court that the Justices' decisions are about values, not methodology, all the way down. If Baude, Sachs, Somin, and Calabresi were to come out and say something like "the Justices should decide cases using their modern values and sensibilities because that is what the framers wanted them to do, and we will now call that "Modern Values Jurisprudence," these scholars would be advocating something perilously close to the legal realist critique. But these scholars, to the best of my knowledge, don't want to be associated with that academic school. Nevertheless, expect someone soon, maybe other New Originalists like Jack Balkin (author of the book "Living Originalism") or Randy Barnett (author of the article "An Originalism for Non-Originalists"), to write an article or book labeled "Legal Realist Originalism." I will not celebrate that day.
When scholars debate and argue Supreme Court decisions, methodological arguments and labels get in the way of clear understandings. When the Justices use those same methodological arguments to mask the value choices they are really making, governmental transparency suffers. As Erwin Chemerinsky argued long ago, ultimately constitutional law decisions by the Supreme Court should be written and then defended on the basis of the "value choices the Court [has] made. There is [simply] nothing else."