Originalism, false dichotomies, and the question of who decides

February 7, 2014

Eric Posner chimes in on my response to Cass Sunstein. A lot of the debate between us is semantic, and the semantic moves at this point are probably familiar. Eric wants to dismiss some of the more abstract or least radical forms of originalism as not-really-originalism. I want to define originalism as a relatively big tent, to make clear how much is common ground in American legal culture. (If Eric’s point is only that Sunstein’s criticisms are limited to the extreme originalists — I agree! That was the point of my post.)

But repeated throughout Eric’s post is a set of false dichotomies. Either you think originalism produces living constitutionalism or it doesn’t. Either you think originalism permits so much precedent that “the original understanding itself rarely or never plays a role in actual judicial decision-making” or you would deeply unsettle modern arrangements, etc. But the truth is somewhere in between. Here’s Mike Ramsey:

I’m baffled by Posner’s response. He appears to think, if I am reading it right, that there are only two potential originalist positions on precedent: one that does not believe in precedent at all, and one that “give[s] enough weight to precedent that the original understanding itself rarely or never plays a role in actual judicial decision-making. ”

But surely it is possible to give substantial weight to precedent and yet find a meaningful role for original understanding. That is so for at least two reasons:

(1) precedent rarely decides actual Supreme Court cases; precedents can be distinguished or extended depending on whether one thinks they should have generative force or not. I would think Professor Posner is enough of a realist to agree. So the question is often whether to extend non-originalist precedent, and a reasonable originalist might undertake to follow but not extend non-originalist precedent (and to read it narrowly). That approach would leave a substantial meaningful role for original understanding without fundamentally destabilizing law in the way Sunstein charges.

(2) every plausible theory of precedent accepts that precedents can sometimes be overruled. The only debate is how often, under what circumstances, and why. An originalist might well answer: sometimes, when the disruption would not be great, and when the precedent is clearly and fundamentally wrong as a matter of original understanding. Again, that approach would leave a substantial meaningful role for original understanding without fundamentally destabilizing law in the way Sunstein charges.

I agree. Originalism sometimes produces living constitutionalism, depending on how abstract a provision is, how clearly its meaning is known, and how much that meaning was intended to evolve. Originalism sometimes permits precedent, depending on how clearly a precedent can be shown to conflict with original meaning, certain forms of reliance, etc. When originalism permits precedent, the original meaning sometimes “plays a role” by helping judges figure out whether the precedent should be extended or distinguished in future cases. In each of these cases, the originalist answer can only be figured out by actually doing the work.

What this means is that if you are intellectually honest, signing on to originalism is signing on to a theory of authority where you can’t be guaranteed in advance that you’ll like what you find. That, I think, is what Eric finds so wrong about originalism. (As he says in his latest post: “Let me anticipate Will’s response, which I expect will be that originalism doesn’t necessarily preclude modern government structure. That is something to be determined. But my view is that any methodology that could even possibly entail that we must return to a government structure appropriate for a small agrarian society, a structure that exists nowhere in the world today, is off the table.”)

Now my view of originalism leaves various escape hatches that Eric rejects — amendment and open disobedience to the law — so we’re never going to be forced back into an agrarian world unless we want to go there. But I think his response gets at our fundamental disagreement about law. Originalism suggests that somebody other than the interpreter gets to make important policy decisions, even if that other somebody might sometimes choose to delegate back to the interpreter in the end. Hence, there is no guarantee the interpreter will like the answers, though it is also a mistake to assume that the interpreter will hate them. They’re probably a mix. That can be scary if you have already constructed a competing theory of law that gives you the answers you want.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).
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