Will Baude: Is Originalism Our Law?

The Columbia Law Review has at last published Will Baude’s thought provoking essay Is Originalism Our Law?, which is the latest entry into what has been called the “positive turn” in originalist theory.   Baude and Stephen Sachs have been the primary movers in this effort, which offers a new normative justification for originalism: Judges are bound to enforce the original meaning of constitutional text because that meaning is, in a positivist sense, “the law.” Originalists have long struggled to provide good reasons why the Court ought to care about original meanings, and until recently I think those efforts have come up a little short. Early originalists simply presumed that original meanings were “the law,” but failed to justify that claim in any rigorous theoretical way. Thus, the New Originalists no longer claim that original meanings are the “law” (these meanings establish the text’s “communicative content,” not its “legal content”) and instead justify originalism as the best theory of adjudication for particular instrumental ends. Sachs and Baude make a new claim, which is that Supreme Court practice—as the actions of relevant legal officials—evince a rule of recognition that identifies original meanings as our positive constitutional law.   If this is true, of course, judges ought to enforce original meanings for all the reasons they ought to follow the law writ large.

Baude’s essay recognizes that this claim seems—at the very least—counterintuitive, and certainly contradicts the traditional narrative of Supreme Court practice over the last century. After all, the primary complaint of “old school” originalists like Raoul Berger, Robert Bork, and Antonin Scalia has been that the Court has abandoned the “law” (to wit, original meaning) far too often—in cases like Blaisdell, Brown, and Roe—and has, in effect, usurped the law-making authority. How can it be, then, that this very Supreme Court practice demonstrates that original meaning is our positive law?   Baude’s tactic is to concede that “old school” or “exclusive” originalism, which claims that only original meanings count as “the law,” does not reflect the Supreme Court’s practice; but a much broader “inclusive” originalism  actually does describe what the Justices think they are up to. This is consistent to some degree with New Originalism—Larry Solum has made some pretty rigorous arguments in favor of inclusive originalism as positive law—but Baude’s version is certainly the most inclusive to date.

Essentially, Baude claims that the Court’s practice is presumptively originalist, and that the Justices will move to other interpretive strategies only when originalism has, for one reason or another, failed to provide an answer.   Even then, the Court strains to provide suitably originalist kinds of justifications for its decisions. Baude’s biggest challenge, of course, is to show that the ostensibly non-originalist opinions that litter the U.S. Reports can be fit into his inclusive account.  He tries to accomplish this in a couple ways. First, he argues that the many apparently non-originalist cases—Blaisdell, Brown, Miranda, etc.—either make clear efforts to get at original meaning, or at the very least, do not expressly reject originalist reasoning. Second, other cases that seem clearly at odds—Roe and the gender discrimination cases—actually did do originalism, they just did it badly. While Baude does an admirable job bringing all of these decisions into his paradigm, I still cannot imagine for one second Berger or Bork signing on. This is, in other words, a decidedly different sort originalism.

Baude’s essay has already been the subject of some very thoughtful criticism. Jim Fleming’s new book Fidelity to Our Imperfect Constitution makes the point, very well, that Baude’s “inclusive originalism” really isn’t originalism at all—at least not in any meaningful sense. Indeed, he argues that Baude’s work “is interesting only in the sense that it shows us the lengths originalists will go to say that originalism is our approach to constitutional interpretation.”  And, over at The Narrowest Grounds, Asher Steinberg wonders whether Baude has succeeded in getting all these cases inside even his super capacious originalist tent. Both criticisms are, I think, pretty well founded.

As someone who has spent a fair amount of time exploring Philip Bobbitt’s account of the Constitution, however, I am most interested in Baude’s critique of that approach. Bobbitt describes six legitimate modalities of argument—text, structure, history, doctrine, prudence, and ethos—which characterize our legitimate constitutional practice. While Bobbitt recognizes that historical arguments are a part of this practice, he concludes that we cannot privilege any one of these modalities over the others without relying on some justification that is outside of the practical modalities (and thus not legitimate). Instead, Bobbitt suggests that efforts to privilege a particular kind of argument almost virtually rely on justifications drawn from within their preferred modality of argument, thus essentially begging the question. Indeed, Fleming makes this point when he says that Baude’s account fails "unless we are assuming, on the originalist premise, that originalism just is our law.”

I think Bobbitt’s point might be made clearer by doing a sort of thought-experiment. Could we make the same sort of case for any of the argumentative modalities as the positive law of our interpretive practice? Could we, for example, (with some creative license to “strain”) bring any case into line with an inclusive “prudentialism” or “ethos”? I am tempted to think so—and, in fact, it may be easier to do with “textualism” or “doctrinalism” than it is with “originalism”—but I, like Bobbitt, am convinced we would need to rely on justifications drawn from inside the relevant modality­ to make that claim work.   The basic problem, as Bobbitt pointed out long ago, is that the modalities are not entirely commensurable, and when incommensurable sorts of justifications run up against one another we simply have to choose which justification we find more compelling. That, I think, is what Baude has been forced to do in order to describe an interpretive practice that privileges historical arguments. And I humbly suggest—and maybe it’s even worth doing in a real essay—that I could probably make the same case Baude has made for the legal status of originalism on behalf of several other interpretive strategies.