Recently, though, some originalists have decided to sidestep the debates, which seem to have come to a standstill, over whether these conceptual and normative claims are right, and mount a positivist defense of originalism. This defense, which relies on the philosophy of law known as legal positivism, argues that courts, particularly the Supreme Court, decide constitutional cases in an originalist way, that it thus follows that originalism is our law, whatever might be said for or against it, and that, since originalism is our law, courts have a duty to decide cases in an originalist fashion unless they can give pretty good reasons for deviating from our originalist law. This kind of argument was first (notably) advanced in an article this year by Stephen Sachs, who argued that if it were the case that current interpretive practices are originalist, courts should keep being originalist, and has now been advanced in a forthcoming Columbia Law Review article by Will Baude, who claims that the Supreme Court's interpretive practices are originalist and that courts, the Supreme Court included, should therefore keep being originalist absent some pretty good reasons for legal change.
When I read Professor Sachs's article some months ago, I was rather skeptical that this positive turn would bear any fruit, because I didn't believe the Court's interpretive practices could be plausibly described as originalist. It seemed to me then, and seems to me now, that at best, the Court only says it's bound by the Constitution's original meaning; in practice, it regularly and predictably deviates from it, and, even when it happens to adhere to it, often does so for non-originalist reasons. If that's right, positivist arguments for originalism take the following unappealing form: "Because you, the Supreme Court, say you're doing originalism, even though in reality you regularly reject it and are rarely guided by it, you have obligated yourselves to really do originalism."
That, however, was only my initial reaction to an article that argued that if the Court's interpretive practices were originalist (which I doubted), then courts should do originalism. Now, Professor Baude has argued at some length that the Court's interpretive practices are originalist. I am unpersuaded. And even if I were persuaded, I think that Baude's article accidentally clarifies why it doesn't matter if originalism is, at the present time, our law.
A. Is the Court Really Doing Originalism?
Baude's argument that the Court's interpretive practices are originalist has three parts. First, the Court has recently produced a number of avowedly originalist opinions, like Noel Canning, Heller, and Crawford. Most notably, in Noel Canning, the Court suggested that the Recess Appointment Clause had to be at least ambiguous, as an originalist matter, for a longstanding practice to prevail, and that clear constitutional text, understood by reference to original meaning, would trump long-settled practice. Second, opinions that are sometimes described as explicitly nonoriginalist - Blaisdell, Brown, Miranda, Lawrence, Obergefell - are in fact either explicitly originalist or at worst noncommittal; there are no canonical rejections of originalism. (Fairly explicitly nonoriginalist cases in the field of election law, including Reynolds v. Sims, are shoved aside in a footnote as "not exactly part of the modern constitutional canon," which is a little odd given Reynolds's immense and continuing salience.) Third, cases like Roe and Reed v. Reed, the results of which nonoriginalists argue are so inconsistent with originalism as to show that originalism is not the law, turn out to be merely instances where the Court claimed to be doing originalism and got it wrong in the application, or may in fact be correct as a matter of originalism.
All this could be right - though I have my doubts on one or two points* - and yet tell us very little about whether originalism is our law. To know whether it was, or wasn't, I would first want to know whether our constitutional law is in fact consistent with the Constitution's original meaning (plus whatever deviations from it originalism allows). If it were inconsistent with the Constitution's original meaning in large part, one would want to know whether the inconsistency was largely attributable to good-faith failures to correctly identify the Constitution's original meaning, or to choices, expressed in opinions or not, to interpret the Constitution by some non-originalist means. I think that, whatever may be said about the Court's opinions, they haven't produced originalist results very often, and that their failure to produce originalist results isn't accidental.
* As is typical in discussions of originalism and the Supreme Court, Baude's focus is entirely on liberal (broadly speaking) putative deviations from originalism. It may be that cases like Shelby County, Croson, or Adarand are harder to square with originalism. None is avowedly anti-originalist, but each is remarkably free of originalist reasoning or even textual analysis, and each makes claims about constitutional meaning that are widely thought to be inconsistent with originalism.
1. A Hypothetical
Baude anticipates this objection, attributing it to Eric Posner and Richard Primus, and, under the heading of "Judicial Insincerity" (see note at the end of this subsection*) has just a couple pages in response to it. His first response is a hypothetical intended to show that, even if the Court is really deciding cases by non-originalist means, so long as it claims to be deciding cases with originalism it's those originalist claims, and not its real rules of decision, that make up our law:
Consider this scenario: Suppose we lived in a world whose judicial system looked, to most legal observers, exactly like ours: Judges issued opinions based on the Constitution, the U.S. Code, the common law, and various precedents interpreting them. But suppose a few canny professors figured out that the judges were all secretly part of an Illuminati conspiracy ruling entirely for the benefit of their secret overlords and just pretending they were following the Constitution and these other sources. Would we say that actually the Illuminati instructions are the law because they describe the secret practice of the judges? Or would we say that the judges were part of a widespread conspiracy to subvert the law? I would say the latter, and I think many others would as well.My first reaction is that Baude's reaction to his hypothetical is the reaction of someone who doesn't take positivism very seriously, which is a problem as his argument purports to rely on positivism. The many ambiguities of the hypothetical don't help: do the judges make decisions that are merely calculated to "benefit . . . their secret overlords," or do they decide cases on the basis of specific "Illuminati instructions" from those overlords; how long has this been going on; do the professors publicize their research; do practitioners make Illuminati-regarding arguments in court in recognition of the Illuminati's control, etc. If one assumes, though, that the hypothetical Illuminati takeover is not a very recent development, but has been going on for decades, and that the secret overlords give the judges specific instructions, I think most positivists would say that the law of such a state just is the overlords' fiats, not the law of the state's pre-Illuminati past or the law adverted to in the judges' opinions. At the very least, positivists would say that the law of such a state is what its courts say it is in its corrupted decisions, not what the law would be if the courts seriously employed the interpretive methodologies they claim to be using.
Similarly, legal positivists will generally maintain that the law of Stalinist Russia as it pertained to Stalinist criminal justice was not the disregarded Soviet Constitution of 1936, which guaranteed independent judges and a right to counsel, along with freedom of speech and freedom of the press, but rather (in part) the secret instructions given by Stalin to the pseudo-independent judges who presided over his show trials, though those judges claimed to be applying the Soviet Constitution. Few would claim that the Stalinist judges (or Stalin) were "subverting" the USSR's real law, embodied in the Soviet Constitution - even though, depending on whose historiography you read, the Soviet Constitution may have been taken fairly seriously in the pre-Stalinist period. Reactions to the contrary would appear to be founded on some quasi-moral criterion for recognizing a state's law, like a requirement that law be publicly promulgated, which has a very respectable anti-positivist pedigree, but doesn't easily find a home in positivism, least of all the positivism of H.L.A. Hart, which Baude makes reference to throughout his paper. To be sure, some flavors of positivism would allow that secret law isn't law, and thus perhaps conclude that Stalinist Russia just didn't have a legal system when it came to high-level criminal prosecutions. They might instead describe those prosecutions as non-legal (which is not to say illegal) uses of state force, accompanied by sham legal rituals. But while some positivists might say that secret law isn't law, it's harder to find a positivist theory on which sham law that doesn't inform a state's legal practices, like parts of the Soviet Constitution, is law. Even a natural law theorist would be hard-pressed to argue that the Soviet Constitution's free-speech guarantee was the law of Stalinist Russia.
Second, what force Baude's hypothetical has derives from features of the hypothetical that aren't present in the accounts of the Court's practices to which he's responding. The reason the hypothetical has some force is that it (a) supposes a Constitution that makes the Supreme Court judicially supreme, but then supposes that the Court extralegally suborns itself to a group of actors who exist outside the lawfully constituted and publicly recognized legal order, and (b) supposes that the Court decides cases on the basis of secret instructions. No one, however, thinks the Court takes its non-originalist marching orders from a secret cabal, or that the Court's successfully kept its non-originalism a secret from all but "a few canny professors," as Baude's Illuminati Court does. (To the contrary, even the public, to say nothing of professors, tells pollsters that they subscribe to something like the attitudinal model of Supreme Court adjudication.) Rather, what I and a lot of people think the Court is up to goes something like this.
The Court sees that the Constitution makes reference to certain concepts - equality, liberty, the freedom of speech. The Court then, for the most part, deems itself free to enact its preferred conceptions of equality, liberty, speech rights, and the like, which are heavily informed by a mix of personal ideology/political philosophy and the Court's understanding of the public's preferred conceptions of these concepts. In doing this, the Court doesn't worry about whether the Constitution originally embodied their preferred conceptions, or whether the Constitution's original meaning was truly so vague as to permit of those conceptions, or whether, even, the Constitution's original meaning was to confer liberty rights, equality rights, or speech rights of any robust sort. (That is, the Court is none too interested in whether the Due Process Clauses' references to liberty were originally understood to substantively protect liberty, or in leading originalists' views that the Equal Protection Clause was limited to guaranteeing race-neutral state protection of personal security and private property, or in originalist arguments that the First Amendment was originally understood to only forbid prior restraints.) While adverting to originalism in its opinions to some degree, and never expressly rejecting it, the Court is open enough about the essentially normative character of its judgments that all the key players are aware that this is what the Court is up to, so much so that practitioners openly pitch their arguments to the Court's median Justices' very personal conceptions of liberty, dignity, and other values which the Constitution as originally understood may well have had nothing to say about.
If that's how our law is made, who would really say that our law is (rather than should be) originalism, just because some of the Court's opinions talk about originalism and none reject it? As I understand the Court's interpretive practices, they're not fueled by ex parte communications with secret dictators, nor particularly secret. Rather, they're fueled by the Court's own fairly publicized normative judgments, which in turn are fueled to some extent by the public's necessarily publicized normative judgments. Indeed, the public may find that the Court's fairly open normative judgments provide a more accessible and legible basis for constitutional law than the Constitution's contested and somewhat obscure original meaning would. Thus, even a "soft positivism" that doesn't recognize secret law as law ought to recognize what I describe as law, and not insist that only the Court's descriptions of its interpretive practices can make up our law of constitutional interpretation.
* To be clear, "judicial insincerity" isn't at all my idea of what the Court's up to, though it may be Posner's or Primus's, as I don't think the Court often makes very strong claims to be doing originalism, and the mere failure to openly reject originalism in opinions that say nothing about originalism isn't itself insincere. What instances of originalist insincerity there may be are limited, in my view, to the few opinions of the Court that make strong originalist claims. It is possible, for example, that the voting line-up in Heller, where conservative Justices made one set of originalist claims that led to a conservative result, and liberal Justices made another set of originalist claims that led to a liberal result, reflects bad faith. It may also be that Justices found what they wanted to find in the original materials and sincerely convinced themselves of their findings. Or, the line-up's coincidence with partisan breakdowns may just be coincidence.
I don't think coincidence explains Heller, but I don't believe that knowing insincerity does either. I think that the Court believed the competing originalist stories it told, and even may have felt itself bound by them. In fact, I would go so far as to concede that in the vanishingly rare cases where the current Court encounters a constitutional provision on which it hasn't written much, its tendency is to employ a modified form of the textualist approach that predominates in its statutory cases, albeit weighted heavily by consequentialist and normative considerations (Heller, Noel Canning, Zivotofsky). However, this tendency seems to be limited to cases involving provisions that are new to the Court's review - not, more broadly, to cases presenting questions that are new to the Court. So I don't think it can be said that the Court employs some version of originalism whenever it isn't constrained by stare decisis (which Baude defines as part of originalism). To the contrary, once the Court gets in a field at all, its methodology becomes, more often than not, transparently non-originalist thereafter. Shelby County's discovery of an equal-sovereignty constraint on the enforcement clause of the Fifteenth Amendment is typical in this regard.
2. Popular Constitutionalist Positivism?
Baude's next move is to say that, while Hartian positivism depends on the practices of officials, an alternative positivist theory posits that the content of American constitutional law depends on a different kind of social fact - public opinion. He then suggests that, since the Court claims to be originalist, or at least doesn't have the temerity to openly reject originalism, it may follow that public opinion is for originalism (else why the false claims) and that originalism is therefore our law.
A couple responses to this. First, if one were interested in pursuing whether originalism was our law on a popular-constitutionalist positivist theory, one probably wouldn't go about doing it by inferring public opinion from the Court's decisions, as there's no reason to think the Court is a good judge of the public's preferred interpretive methodology. One would instead inquire directly into public opinion. In doing so, one would possibly find, e.g., opinion polling showing that while the public claims to want originalism, it likes many non-originalist results while being under no illusion that those results are originalist. Quite obviously, Baude's article assumes a far more conventional Hartian form of positivism; otherwise, it wouldn't be all about the practices of the Court.
Second, the presence of originalist talk in the Court's opinions could be traceable to any number of things besides a public demand for originalist talk in the Court's opinions. Here are a few possibilities:
(1) It may be that while judges are fairly comfortable about making normative judgments, they and their law clerks have less facility at putting them into writing, and feel more comfortable making claims about the meanings of legal texts.
(2) It may be that while the public does not demand originalism, openly acknowledging that a decision deviates from the Constitution's original meaning would cause more controversy than such an acknowledgement would be worth. Since the Court is fairly skilled at making superficially colorable claims for their decisions' originalist purchase, an open rejection of originalism might gain the Court no additional interpretive freedom at significant cost.
(3) It may even be that a minority of the public strongly adheres to originalism, and that the Court perceives that disassociating itself from originalism would delegitimize itself in the view of that minority. I myself suspect that is true, but I don't see that an originalist heckler's veto would constitute our law for popular-constitutionalist positivist purposes.
(4) It may even be that the Court believes the public supports originalism, and therefore lards its opinions with originalist arguments and vague claims to fealty to original meaning, but that the Court is badly mistaken about what the public wants. That is, even if we could infer from the existence of disingenuous claims in the Court's opinions that the Court believes the public likes originalism, we could infer nothing further about whether the public really likes originalism.
All of these possibilities are plausible enough that we can't say that, because some of the Court's opinions are originalist and none are anti-originalist, the public probably supports originalism.
Third, the theory seems implausible, as a positivist theory. If (a) the Court and the bulk of our constitutional decisions are vehemently non-originalist, but (b) the public supports originalism, what sort of positivist would say that originalism not just ought to be, but is the law?
3. Originalist "Strain"
Baude finally argues that, because the Court strains to reconcile what it's doing with originalism - to show, for example, that constitutional text as originally understood does not unambiguously foreclose their decisions - originalism has "some bite." I think that depends on the difficulty and sincerity of the strain. Suppose that judges decide cases first and labor to show that their decisions are compatible with some colorable originalist reading of the Constitution later, and suppose that, whatever the actual facts about the Constitution's original meaning and its ambiguity, and whatever a judge's actual beliefs about those matters, the Court always finds it pretty easy to say that the Constitution's original meaning permits their preferred interpretations, and always does so. Were that so, would originalism be our law, or even an important part of our law of constitutional interpretation? I don't think so. Such a purely rhetorical flourish would be no more law than the attractive font the Court writes its opinions in.
On the other hand, suppose that judges provisionally decide cases first, then check to see whether their decisions are compatible with originalism, and change their minds if they conclude that their provisional decisions are contrary to the Constitution's original meaning. Then, originalism would be an important part of our law, even though it's not the primary mover in the Court's decisions. My suspicion is that the strain is more rhetorical than real, but my bottom line is that the mere presence of originalist strain in opinions doesn't, by itself, prove anything.
B. Does it Matter if the Court's Doing Originalism?
Having concluded that the Court's doing originalism, Baude says it follows that originalism is our law - a move which, by the by, implicitly assumes a traditional positivist model and rejects the popular-constitutionalist model briefly brought in to save the positive turn's reliance on the Court's opinions from charges of insincerity. (That is, it may be that public opinion is congruent with originalism, but it wouldn't follow that originalism is our law from the fact that the Court does originalism if popular-constituitonalist positivism was the right positivist model here.) Baude then argues that courts have an obligation to follow originalism, originalism being the law, and that a judge who doesn't do originalism is arguably violating his oath to follow federal law unless he can justify a change to some other, "nonlawful methodology."
I accept a modified version of Baude's first premise: if the Court is really doing originalism and not just saying so, originalism is our law of constitutional interpretation. I also would agree that courts generally have an obligation to follow the law and should have good reasons for changing the law. But I don't think that it follows that, if the Court is really doing originalism, courts have an obligation to do originalism. And even if I thought so, I don't think it would make much difference.
1. Interpretive Methodologies Aren't, Themselves, "Law" in the Relevant Sense
First, it is an odd but characteristic feature of our legal system that courts don't deem themselves fully obligated to use the interpretive methodologies that courts generally use. For example, as Abbe Gluck has written in several publications, in the world of statutory interpretation, only Chevron is treated as precedent; other cases on statutory interpretation are treated as stating defeasible "rules of thumb." This has important implications. If a Justice of the Supreme Court, or a lower-court judge, refused to apply Chevron, we might say he was disobeying the law in the case of the Justice and would say it in the case of the lower-court judge. On the other hand, though the Court has decided countless cases by reference to legislative history, do we think Justice Scalia is disobeying the law when he refuses to look at legislative history, or is essentially voting to overturn several hundred precedents that do look at it? Do we even think a lower-court judge who categorically refuses to look at legislative history "disobeys" Supreme Court precedent that legislative history can matter, and is employing a "nonlawful methodology" of interpretation? Conversely, though the Court's interpretive practices are today predominantly textualist, would we accuse Justice Breyer or a lower-court judge of disobeying the law if they continued to interpret statutes in a purposivist manner?
I think the answer to all these questions is no. Rather, we would say that these judges disagree about how to interpret the law, that the prevailing views on interpretation, though they are reasons for holdings of the Supreme Court, are not binding law, but merely a majority view about how to interpret the law, and that the only law here that must be obeyed is the statute at question and perhaps certain "super-canons" of interpretation - Chevron, or some clear statement rules. (That is, a court that acknowledged a statute was ambiguous but refused to defer to an agency or to give a statute its federalism-favoring meaning would be disobeying "the law.")
The same is true, I think, of constitutional interpretation. Heller, Shelby County, and Obergefell are understood as binding precedent for their specific holdings. But Heller's full-dress originalism isn't understood, by the Court or lower courts, as binding precedent for the proposition that the way to interpret the Constitution is full-dress originalism, anymore than Shelby County is understood as binding precedent for the proposition that important rules of constitutional law, i.e., equal sovereignty, can be created out of little more than a string-cite of dicta, or anymore than Obergefell is understood as binding authority for the proposition that courts construe the Constitution in (fill in your description of Obergefell's approach to constitutional interpretation here). Each is a one-off, or at most one among several similarly reasoned cases.
Further, even given some uniformity in interpretive methodology, no one views disagreement with that uniform approach as disobedience to the law. Suppose, as most observers of the Court believe, that the Court's prevailing practices weren't originalist in the late 80s, when Justice Scalia joined the Court. When Justice Scalia started writing originalist dissents, or better yet, when Robert Bork wrote originalist opinions as a circuit judge in roughly the same timeframe, were they violating their oaths to follow federal law, federal law including, on a modified version of Baude's account, Justice Brennan's living-constitutionalist theories? Were they obligated to go along with the prevailing methodology until it changed? I think most people would say not. They would say that Justice Scalia and Judge Bork had a disagreement about how to interpret the law, namely the Constitution, and that Justice Brennan's interpretive practices, while law in some sense, were not the sort of law that Justice Scalia and Judge Bork had a duty to follow. Likewise, however originalist the Court has generally been, I'm confident that even Baude would concede that Hugo Black practiced a kind of textualist proto-originalism that was out of step with the interpretive methodology of his colleagues. Very few people, though, would say that Justice Black disobeyed the law and practiced a "nonlawful methodology" because he refused to acquiesce to his colleagues' rejection of his interpretive approach.
An obvious response to this argument - besides fighting my premises - is that I'm conflating precedent with the much broader category of law. Baude says the Court has a duty to follow the "law," not just precedent. I would say, however, that for Baude's argument to go, he has to distinguish between the law officials have a duty to follow and the law officials don't, or show that public officials really have a duty to follow everything that might be described as "law," which seems implausible. I would further contend that rules of precedent are how we distinguish between the law courts make that officials have a duty to follow and the law courts make that officials don't, and that decisions that interpret the Constitution or statutes aren't usually treated as binding as to their interpretive methodologies. Baude appears to recognize that something isn't universally "the law" just because it's in a Supreme Court opinion. For example, he acknowledges that originalism may not be the law of state constitutional interpretation in certain states, though he thinks it's federal law, which is because, of course, the Supreme Court's pronouncements on how to interpret the U.S. Constitution are only persuasive authority on how to interpret the Michigan Constitution. If he acknowledges that perfectly contingent rule of precedent and deems it constitutive of what the law is on his positivist account, I think he has to recognize others, including the weak precedential status of interpretive methodology.
A caveat - this isn't to say that there are no nonlawful interpretive methodologies. It may be that extreme noninterpretivist views are unlawful, or that constitutional disobedience is unlawful, or that it would be unlawful to treat decisions interpreting foreign constitutions as controlling (and not just persuasive) authority on how to interpret ours. What makes these approaches unlawful? On my view, it can't be - at least, can't be enough - that courts don't do these things. Rather, I think the reasons might be (a) the fact that public officials, across branches, do generally treat the Constitution as binding, though they disagree on how to interpret its instructions, and (b) a conceptual argument that free-form non-interpretivism, following foreign law as a rule, or constitutional disobedience are inconsistent (in the latter case obviously so) with treating the Constitution as binding.
2. Justifying Legal Change
Suppose that everything Baude argues up to this point is right - that originalism is our law, that judges therefore have a duty to be originalist, and that they can only deviate from originalism if they justify the deviation. So what? As I understand it, the whole point of the positive turn is to say that the fact that originalism is the law is a powerful reason to do originalism, and to shift the burden to non-originalists to justify alternative methodologies. But how heavy is that burden? Baude doesn't say. Is it something like the burden to overcome stare decisis, or is it just the burden of making a forceful argument? If the latter, it must be said that non-originalists have all kinds of forceful arguments for rejecting originalism. They may not be right, but they're serious enough to cause people like Baude to despair of proving originalism right normatively or conceptually and to make the positive turn.
It's difficult, then, to see why it matters if there's some burden on non-originalists to justify a change; they can just make the same arguments against originalism that they've been making for the last 40 years. If one were to claim that the burden's a high one, that claim would be inconsistent with the general positivist tenor of Baude's argument, as I'm aware of no actual American legal practice that forbids changes in interpretive methodology absent compelling justification. To the contrary, it is a practice of ours to undertake rapid and cataclysmic change in interpretive methodology without always giving very much reason, particularly in the world of statutory interpretation. In any event, once a change is made, rightly or wrongly, positivism will call that change the law. Ultimately, then, hanging a burden on non-originalists to justify non-originalism doesn't do much to avoid normative and conceptual debates over interpretive methodology.
Michael Ramsey kindly linked to my post and commented that he had a similar reaction to Baude's article:
Suppose it were the case that non-originalism were our law? Non-originalists like to claim it is, and that therefore we must accept it, in a sort of mirror image of Professor Baude's paper; I think they're wrong as a descriptive matter, but let's assume they're right on the first point. Would that mean originalists have to concede defeat? Of course not. If the Court's current interpretive practices are normatively bad, we should change them. The same goes for originalism. Whether it's the law or not (or, more precisely, whether it describes Supreme Court practice or not), it has to justify itself normatively or it should be abandoned. Part of its justification might be (if true) that it's something we've consistently done, but (like Steinberg) I think that carries minimal weight.I think this is exactly right. Unless one's something of a Burkean about methodological change, I don't see where a descriptive project gets anyone. Of course, maybe one should be a Burkean about methodological change; if non-originalism were really this untried experiment, one could reasonably have serious concerns about how it would go. I tend to think that, if anything, originalism is the untried experiment we should have serious concerns about, as originalism (and serious originalist research) is still so young that we still know very little about where, e.g., originalist First Amendment law or originalist interpretations of Article I would lead us.