What makes history constitutionally relevant? Some Reservations about Baude and Sachs’ view of the past

I am alternately puzzled and exasperated by originalist scholars’ attitude towards eighteenth century history. On one hand, they flyspeck old documents unrelated to specific constitutional texts to figure out what those texts mean. (Consider, for instance, Jennifer Mascott’s painstakingly erudite analysis of how eighteenth century writers used the noun “officer” in various corpora of texts to figure out what “Officer of the United States” means in Article II). On the other hand, they mostly ignore the great partisan disputes about banks, monarchy, natural aristocracy, religion, and public debt and the like, that motivated these texts. The historical past in legal scholarship on “original public meaning” has this dignified but misleadingly monotonous look of a white marble Classical Roman statue — misleading, because those statues were originally painted in life-like colors that only washed away with the passage of time. Colorlessly apolitical constitutional interpretations, like colorless Classical statues, are just historically inaccurate.

William Baude and Stephen Sachs have helped me think about this attitude towards history with a typically lucid and analytically deep essay. They argue that lawyers should focus on “legal doctrines and instruments specifically, rather than intellectual movements generally” when trying to figure out what past laws mean, because our law today “grants continuing force to the law of the past,” not the cultural or intellectual movements of the past. Sure, cultural movements, partisan motivations, ideological fights might be the cause of those old legal doctrines, but our modern law “typically” does not incorporate these extra-legal forces. Instead, it incorporates only “legal doctrine (treatises, court cases, and so on).” Baude and Sachs cite Hart’s Rule of Recognition to support the idea that the “internal point of view” leaves out the political, partisan, cultural motivations for the law: In their view, modern law incorporates only this “internal point of view” of the law, not the law’s “external” causes.

As I explain after the jump, I think but am not quite sure that I disagree with almost every part of their argument. Baude’s and Sach’s essay is, however, by far the most careful effort so far to justify a scholarly practice that has previously been followed but not much defended by originalists. For those readers who want the short version, here are my two bones to pick. First, Hart’s “internal point of view” nowhere suggests that the law consists only of “legal doctrine.” Instead, ideological, cultural, even partisan platforms found outside conventional law sources, can just as easily be the basis for an elite’s “internal” consensus of what “law” is. Second, the ideological purposes and functions of constitutional language must be part of legal interpretation of constitutional text from the outset, because (as Ryan Doerfler has persuasively argued) the pragmatic function of words is just as much part of their meaning as semantic usage.

1. Does Hart’s Internal Point of View or Rule of Recognition suggest that we should focus only on doctrinal rather than extra-doctrinal statements of past officials?

Maybe I am misreading them, but Baude and Sachs seem to me to conflate Hart’s “internal point of view” with the doctrinal point of view. Here’s the relevant passage:

Present law typically gives force to past doctrine, not to that doctrine’s role in past society. How to identify legal doctrine is actively debated among philosophers; one standard view urges particular attention to the rules recognized by “the officials or the experts of the system.” A modern lawyer, directed to investigate how the law stood in the past, might thus focus on operative legal texts and on “internal” accounts of legal doctrine (treatises, court cases, and so on), rather than on “external ” accounts of law’s wider reception and operation—unless, of course, the doctrines themselves direct attention to these widespread understandings.

A lot depends on what exactly Baude and Sachs mean by “treatises, cases, and so on,” but, if they mean that Hart’s “internal point of view” is exhausted by conventional legal sources used by courts and lawyers, then I think that they misunderstand Hart.

For Hart, the “internal point of view” on law was simply the attitude of someone who accepted some system of rules as not merely prudentially, but also as normatively, binding. (I rely on Scott Shapiro’s gloss on Hart here). In Hart’s words, "it is possible to be concerned with the rules, either merely as an observer who does not accept them, or as a member of the group which accepts and uses them as guides to conduct.” An example of the former — the “observer” — is (for instance) Holmes’ “bad man,” that is, the person who recognizes the existence of rules only “externally,” as considerations affecting his power to achieve personal goals. The latter — “member of the group” — treats the rules as normative “guides to conduct” irrespective of the sanctions that might follow (or not) from violation of the rules.

Nothing whatsoever about this “internal”/“external” distinction has anything at all to do with the distinction between conventional legal materials addressed to courts and ideological or even partisan materials addressed to the public at large outside of courts. Both can establish norms to guide conduct that the elites of a system might recognize as binding in Hart’s “internal” sense. For instance, Jefferson’s and Madison’s Democratic-Republicans regarded private banking corporations as threats to republican equality, because financiers allegedly had special inside connections that could be used to corrupt government. They sought to make this belief a part of American constitutional law not through lawsuits but through elections. Andrew Jackson succeeded in making this suspicion of federal aid to corporations into a constitutional rule for roughly thirty years (between 1832 and 1862).

Nothing in the constitutional rhetoric of Madison and Jackson denouncing banks as threats to equal citizenship found its way into any legal treatise — not even into St. George Tucker’s treatise that was most sympathetic to this typically Southern point of view. But the anti-corporate principle was nonetheless a constitutional convention that guided political elites in control of the United States for three decades. From Hart’s “internal point of view,” the theory that Congress lacked the power to grant charters to private corporations was no less “law” in antebellum America than the statements found in treatises and the like, because the elites who ran the system “internalized” this principle as a normatively binding gloss on the Necessary and Proper clause of Article I.

More generally, to the extent that modern law today borrows from laws enacted in the past, modern law must take account of the partisan and cultural movements that formed part of the normative basis for elites’ internalizing those laws as guides for their conduct. I am not sure that Baude and Sachs disagree. To the extent that they concede the point, they should also recognize that modern law (and legal scholarship) needs to pay attention to the great ideological fights and fears of the 1780s and 1790s (about, for instance, insidious popish plots of the Anglican and Congregationalist churches, stockjobbers’ corrupting influences over Congress, machinations of the Society of the Cincinnati to create a Cromwellian monarchy, and Anglo- or Francophilic treason in foreign affairs).

2. Can we understand constitutional text without considering ideological function?

There is a second reason why I believe that modern law must incorporate old laws’ partisan and ideological functions. Those functions form part of the old law’s legal meaning. There is a tendency among originalists to use the good ol’ “plain statement rule” to arrange interpretative sources in lexical order: First, look at evidence of purely semantic usage to infer textual meaning, and examine the pragmatic functions served by the text only if the “plain text” is unclear. As Ryan Doerfler persuasively argued (see especially Part I of Who Cares How Congress Really Works?), this lexical ordering makes no linguistic sense: Interpretation of text must be based on “what [the lawmaker] is trying to do” rather than just on “what the [lawmaker] is trying to say,” such that consideration of practical circumstance is built into any interpretation of text from the outset. Once one considers pragmatic function, however, one must think about all of the normative motivations behind the old laws’ words, and those motivations extend far beyond the abstractions in legal treatises and judicial reports.

Here’s an example of how semantic form must follow political function. The old constitutional rule adopted by Andrew Jackson in his Maysville Road Veto Message was that the federal government could not fund intrastate roads, because they were local improvements that did not serve the “general welfare.” Jackson’s motivation was fear of corrupting federal patronage to road-building corporations as well as worries that infrastructure log-rolling would exacerbate sectional divisions between South and West. To the extent that those ideological motivations were voiced as part of the reason for the rule, they are part of the rule just as surely as old dictionaries and corpora of contemporary texts that use the phrase “general welfare.” To the extent that modern law seeks to incorporate such an old doctrine, it must also incorporate those purposes in order to get an accurate read of the old law. (Only such an incorporation of purposes can explain, for instance, why there were fewer constitutional objections to the federal government’s’ giving states land grants dedicated to the funding of railroad lines).

Again, I am not quite sure whether or not Baude and Sachs would disagree with any of this. (Baude is the co-author, with Ryan, of a brilliant essay attacking the notion that semantics can take lexical but not absolute priority over purpose in legal interpretation). To the extent that they agree with me, then I think they would have to enlarge vastly the sorts of texts that originalists typically consider as relevant to fixing the meaning of old laws.

3. Why do originalists want to de-politicize old laws?

I will end by asking a tendentious question and offering a speculative answer. Why do the “new originalists” seem to want to de-politicize old laws like the U.S. Constitution? They seem obsessed with all sorts of lawyerly semantic stuff — lawyerly canons of construction, corpora of texts having nothing to do with politics or the constitution, etc. — that was manifestly not the concern of 18th century constitutional disputants. For the most part, early constitutional interpreters from Madison to Marshall, from Hylton and the carriage tax to Chisholm and states’ sovereign immunity to McCulloch and the Second Bank, all invoked giant, disputed principles about liberty, citizenship, rule of law, and the like to settle constitutional disputes. They did not (indeed, could not) search vast databases to see how a particular word was used in apolitical contexts. Indeed, they rarely spent much time on semantics at all. Why, then, adopt a narrow focus on legal texts that was not shared by the people who wrote and initially enforced those texts?

One reason is that originalists, like formalists in general, want to sidestep heated political disputes in favor of stable, apolitical past settlements. In a typically eloquent passage, Baude and Sachs suggest such a longing for quiet stability: they write

if the legal slate were wiped clean with every new Congress, every election would be a “Flight 93” election. Relying on past law lets us give particular government officials particular limited authorities to affect that law, thereby lowering the stakes of any one official’s selection.

I share Baude and Sachs’ desire for legal repose. Like them, I’d like to find a trove of old documents that, like some ancient deed in the county register’s office, could settle our current fights over basic issues with bare semantics and obscure legal conventions. But I doubt that the U.S. Constitution provides much in the way of such calm. Going back to the 18th century for apolitical, legalistic settlements of big issues is like going to a saloon in 19th century Deadwood to curl up with a nice cup of tea for a quiet read. The 1780s and 1790s were a constitutional barroom brawl. The Federalist and Anti-Federalists managed to create a document together only by ducking the biggest issues with abstractions and ambiguities, strategically deferring fights that could have doomed the whole project of Union.

Maybe Baude and Sachs will be able to persuade us that all of those angry fights are not really part of our modern law today. If they do, however, I doubt that there will be much meaningful old law left over for originalists to ponder.