Originalism in our legal culture: The case of the Ground Zero mosque

February 14

Eric has (of course) a response to my post from earlier this week on the reasons for being an originalist — especially my claim that originalism is part of American legal practice, part of our law, even if it isn’t necessarily a part of everyone’s.

This paragraph from Eric’s post comes very close to passing the methodological Turing test (i.e., describing my position in the way I would describe it):

If Will’s position has any force, it derives from the fact that the public does seem to venerate the 1789 text and the founding generation; and, moreover, that Supreme Court justices do not openly acknowledge that they have the power to amend the text on their own.

Eric responds that we have a lot of false ceremonial aspects to our legal culture, such as the notion that judges ” ‘find’ law rather than ‘make’ law,” or the Chief Justice’s invocation of an umpire calling balls and strikes. You will not be surprised to learn that I disagree with Eric about the importance of those aspects of our culture too. It’s terribly important that judges pretend to find law rather than making it (what else could justify its retroactive application to the parties?) and that judges acknowledge the umpire ideal. Those ideals may well be exaggerations and imperfectly realized, but they are key to judicial legitimacy.

Eric also disagrees with me at a more empirical level, and proposes a test question to find out where people’s commitments truly lie — the goal is to come up with a question that pits originalism against something popular. But his example, which uses a birth-control prosecution in the trial court, doesn’t work, because most versions of originalism (including Sachs’s) tolerate precedent (especially for lower courts) so there is no clear conflict.

In any event, as we’ve seen, precedent is an area where we can’t even agree what counts as originalism, so a good test question ought to abstract from precedent entirely. Same-sex marriage might be a better area for Eric, but Mike Rappaport and Mike Ramsey — who are core originalists if anybody is — both think it is quite plausible that the original meaning of the Fourteenth Amendment protects a right to gay marriage.

Maybe a better question would be about building a mosque near Ground Zero:

A Muslim landowner wishes to build a mosque a few blocks away from the former site of the World Trade Center, in New York City. The city’s zoning authority has voted to forbid the mosque on religious grounds. But the city’s vote is inconsistent with the original understanding of the amended Constitution, which prohibits states from discriminating against peaceful religious activity. Should the city nonetheless punish the landowner? Should a court allow the city to do so?

[If you're wondering, 2010 opinion polls from Fox, Quinnipiac, and CBS reported that building the mosque was unpopular (61-71 percent against, 22-32 percent for), but also that most people thought the owner had a right to build it (61-73 percent vs. 25-34 percent).]

Perhaps both of us can do better, but defining the appropriate questions may prove somewhat difficult. Putting aside things permitted by precedent, it’s actually hard to think of things that are both widely popular today and clearly inconsistent with the Constitution’s original meaning. (I spent this morning scrolling through Polling Report until I finally found the Ground Zero example.) If you have better suggestions, please leave them in the comments!

Anyway, the fact that it’s hard to think of clear cases of conflict, apart from precedent, was my original point. And maybe it means that the important disagreement between me and Eric is really about precedent after all.

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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