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Hey Originalists, The First Rule Of Originalism Is... You Do Not Try To Explain Originalism!

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Constitution constitutional law We the PeopleChicago Law’s Will Baude has an article in the Washington Post today. He tries to explain why it’s a good thing that the Supreme Court shrugs off legal analysis in favor of armchair history. Presumably, he thinks this is helping assuage the concerns of the growing consensus that the Supreme Court has forfeited its legitimacy.

It is not.

What it does, however, is drive home the intellectual bankruptcy of the Originalist project. In the span of a few hundred words, the professor’s hand-waving and question begging unintentionally lay bare the emperor’s nakedness. Because Originalism is brilliant public relations, invoking the visceral sense that “original” means “authentic” to cover a lot of nonsense.

But buzzwords suffer when you try to explain them:

The court finds itself using history for both legal and practical reasons. History is inextricably connected to law. Our Constitution and statutes were enacted in the past, and amended in the past, and so understanding their content is an inherently historical endeavor. History, practiced properly, also can supply objectivity, giving the justices a basis for deciding beyond their personal views and the controversies of the day.

So, the defense is “we must employ originalist methodology or else we can’t be originalists”? That’s fairly weak as a response to “your methodology is bad.”

Not so long ago, the conservative judicial philosophy was laser-focused upon text. The textualists said you could only be bound by the text as it exists right now and if the text conveys the wrong message then it was up to the legislature to change it. Predictability for those ensnared by the law requires looking at the plain meaning of the text as a reasonable person today would understand it — not a justice’s individual theory about what someone might have thought about the text 200 years ago.

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I’m not saying textualism is a perfect legal theory but it proves vague conceptions of “history” are not inevitable.

The use of constitutional history has been challenged as inherently regressive. Why should today’s public policy decisions owe anything to past eras when women or people of color were excluded from power? This argument misses the point.

Does it, though?

In cases like Dobbs, the court seeks to free government from constitutional constraint, arguing that today’s governing majorities are entitled to make their own choices about abortion policy, no matter what dead White men in wigs may have thought.

*Slow clap.* You see, Alito cites all those medieval pamphleteers complaining about abortion to free you from the “dead White men in wigs.” This is the sort of answer you give when you’re cold called as a 1L and didn’t do the reading.

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Also, what rights survive this logic? “You have ‘Freedom of Speech,’ but does that cover yelling fire in a crowded theater? Today’s governing majorities are entitled to make their own choices about it!” Every close case involving a right is up for grabs. This isn’t a coherent legal philosophy.

This is all the more bizarre in the context of the classical liberalism that guided the Framers because it assumes the constraint on government power should be removed to allow governments to exert new powers. Though if you take a fundamentally statist view that the Constitution is only about constraining state governments it makes sense… as would a future opinion taking the federal government out of the desegregation game because, hey, we’re just freeing governing majorities to make their own choices!

Another critique is that judges cannot do history well, and that their judgments will inevitably be results-oriented. The justices went to law school, not graduate programs in history, and only a few of their law clerks have such training. Historians frequently condemn the court’s historical claims as oversimplified, overconfident and twisted to reach the desired outcome. This too misses the point.

How so?

What the Supreme Court is ultimately deciding is law, not history for its own sake. It turns to the historical record to better understand the text that it is entrusted with interpreting, and uses legal procedures to do it — a traditional performance of the craft of judging.

Charitably, he’s trying to say a chef doesn’t need to understand the chemistry behind the Maillard reaction to properly sear a steak. What he’s actually saying though is more akin to “look, why do chefs have to know if meat is moldy?” It’s not that Originalist opinions aren’t clearing peer review at a history journal, they’re literally getting “see me after class” notes.

Baude is, of course, trying to have it both ways. Legal analysts criticize an opinion as legally flawed and the Court says “we used history.” Historians say “that’s historically inaccurate” and FedSoc is suddenly all, “look, we’re just simple country lawyers here and we don’t understand all your fancy history.”

That the court is doing law, not just history, also responds to accusations that the court is inconsistent in which historical periods it emphasizes. The ultimate question is what our most fundamental law provides, which means focusing primarily on the periods when the Constitution was written and amended, and only secondarily on subsequent interpretations. The court is not trying to provide a broader history of our society’s attitudes toward guns, sex or anything else. Indeed, that is not its role.

This is an embarrassing paragraph. It’s not inconsistent, they’re focusing on when the Constitution was written and amended… except in Bruen where there’s no historical support for the Second Amendment being interpreted that way so we cobble together some offhand remarks from 80 years after the fact. Or in Dobbs where abortion statutes at the time cut in favor of Roe so we cite a witch-hunter from the 1600s as proof that, maybe the Founders would’ve thought abortion was witchcraft or something.

He’s disingenuously recasting the criticism and then hand-waving his own straw argument. The whole point of making up a fake argument is to make up one you can answer!

The real issue is not whether the court should be using history, but whether there are legally relevant pieces of history that it is missing.

No, the real issue is whether the Court should be using history. Full stop.

Critics have leveled a number of damning criticisms of the risks of basing constitutional order on sloppy, amateur history and the article’s premise is “assuming the constitutional order must rely on sloppy, amateur history… there’s no problem here.” Baude tosses in a couple of asides to historical examples that could cut the other way in both Dobbs and Bruen as if that’s not the flaw in his whole article. That judges could cherry-pick other historical factoids to support the opposite conclusion is WHY THE CONSTITUTION SHOULDN’T TURN ON HISTORY AMATEUR HOUR.

But he does offer one insightful point in the penultimate paragraph (don’t worry, he screws it up in the final paragraph by going back to history being inevitable):

This brings us to the broader lesson. In recent years, many critics of the court — including some dissenting justices — have ceded the initiative. They have tried to shield themselves behind precedents or to poke holes in the majority’s arguments without advancing a competing constitutional theory.

This is a good point! Because Originalism isn’t much of a constitutional theory but at least it’s an ethos. Liberals used to flock to the “living Constitution” concept, but the right deftly recast that as loosey-goosey compared to their own “Originalism.” Originalism just feels set in stone even if it’s a wildly shifting bundle of ideas that map the contemporary policy preferences of the Republican Party. So maybe it’s more fair to say the critics of the Court have ceded the initiative by not advancing a competing brand of constitutional theory. Because the liberal justices all have consistent judicial philosophies, they just don’t have a cool slogan for 65-year-old non-lawyers to parrot whenever pretending to understand law.

That’s what this whole article is really about: as long as critics cede the idea that constitutional order is just a game of who can compile some cherry-picked historical musings then the Originalists are going to win every time. Because once we accept that there’s both no alternative to citing history and no academic standards for using that history then there is no rule of law at all, just competing fig leaves for results-oriented opinions.

Of course the Supreme Court needs to use history. The question is how. [Washington Post]

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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