Originalism, the bear principle, and the reading of entrails

Eric has a long response to my post on Brown. In general, I think our discussion is making a lot of progress. I’ll respond to two of his points here.

First, Eric says:

[O]ne of originalism’s supposed advantages [is] that it produces determinate results. But time and again, the original meaning turns out to be obscure, and so either courts must be willing to continually reevaluate precedents as new historical research is produced (which is unacceptable from the standpoint of judicial economy and legal stability) or the original meaning loses its ability to exert influence on legal outcomes as precedent accumulates.

There is a lot packed in here. I think that reevaluating precedents is sometimes a good thing, not a bad thing, and originalism is one of the best methods for doing so. I think Eric overestimates the amount of indeterminacy in originalism — both the range of cases in which it is indeterminate and the amount of indeterminacy in those cases.

But most importantly, I think originalism is entitled to invoke the “bear principle” — whatever its defects in terms of radicalism, indeterminacy, etc. ought to be judged against the other competing methodologies, not in the abstract. (“I don’t have to outrun the bear, I just have to outrun you!”) I don’t think originalism has to be justified on consequentialist grounds, but the consequentialist case refuting it is not proven.

That brings us to the non-consequentialist question of whether originalism is consistent with our practice. Eric says:

The constitution in practice is just what the various branches of government agree are the rules of the game at any given time. In their hands, the founding-era document is little more than a rhetorical flourish, used strategically. That is our political culture, one that happens to require ritual obeisance to the founders. Thus would the Roman priests examine the entrails of birds in preparation for a great political event. How long would one of those priests have lasted if he really thought he could discover in those entrails the will of the gods?

Eric and I just see the world very differently. I see our government strictly following the founding-era document a huge amount of the time, even when its answers are a little wacky. (How do we know that those 500-some folks who keep telling us what to do are “Congress”? How many Representatives and Senators are there, and how many votes do they get? When do we hold elections? How is the President selected? How do we know that federal law trumps state law? Etc.)

Those answers may seem trivial because they are easy cases, but the easy cases tell us something important about how our law works. When the Constitution speaks really clearly on something, only academics would deny that it is the law.

As for the entrails, I think we have both an empirical and a jurisprudential disagreement. The empirical dispute is obvious: I think many (though not all) invocations of originalism are sincere and Eric doesn’t. I suppose one’s empirical observations are correlated to one’s interpretive priors.

But maybe more importantly, I think political rituals are important even when they are insincere. Suppose we lived in a world whose judicial system looked, to the outside, exactly like ours — judges issued opinions based on the U.S. Code, the common law, the Constitution, 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 U.S. Code, etc. 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 engaged in a widespread conspiracy to subvert the law? I would say the latter.

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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Washington Post · January 31, 2014