In Episode 5 of Deep Dive, Will and Adam tease out positive law originalism further by discussing "original law originalism." They discuss the difference between original intent and original meaning, how scholars might use methods of change, and how originalism handles the Reconstruction Amendments.
In Episode 5 of Deep Dive, Will and Adam tease out positive law originalism further by discussing "original law originalism." They discuss the difference between original intent and original meaning, how scholars might use methods of change, and how originalism handles the Reconstruction Amendments.
Recorded February 8, 2021
Will Baude: Welcome to Dissenting Opinions, a podcast by the Constitutional Law Institute at the University of Chicago Law School. I'm your host, William Baude, and you're listening to a special series, we're calling Deep Dive where professor Adam Chilton and I will take a deep dive into originalism. We recorded this series each week on our winter quarter over Zoom in front of a 'live' audience of students. So if there are things that seem out of context or don't make sense, that's why. Without further ado, let's deep dive into originalism.
Welcome back to the fifth episode of our Deep Dive into originalist theory. I feel like we've successfully gotten far enough into the weeds, well, that were really in the weeds. But today I wanted to talk about the other major intellectual move in originalism in addition to the positive turn that we talked about recently, that together sort of makes up the newest, the newest, I think the best, but the newest theory in originalism, and that's called original law originalism, an idea that originated with Steve Sachs at Duke but has since been assimilated into work that he and I have written together, and that's become sort of the other piece of positivist originalism.
So just in terms of all the moving parts, because I know there's so many labels, we had started with originalism in general, which is a broad family of theories about constitutional interpretation that just say in some way, the original meaning of the constitution is supposed to be binding. And then there are lots and lots of different theories about how and why. The specific application of the kind of positivist originalism I'm trying to draw us towards over the course of the quarter have two steps. So one is the positive turn, which is basically a particular kind of justification for originalism that says we should care about originalism because it's our law, it's what our actual practice of law is right now distinct of the normative and linguistic arguments we talked about before. So that said, we should figure out what our law is now and do that, that's the positive turn.
Original law originalism is sort of the application or the answer to that inquiry. So original law originalism, the theory goes, is the best description of what we do now and so it yields a particular kind of originalism. And that is that when you're trying to figure out what the law is today on some question of constitutional law, you start with what was the law when the provision was enacted? 1788 for the constitution, 1867 or 1868 for the 14th amendment. And then you ask yourself, has anything happened since then that has legally changed the answer? So you look at kind of what's changed since then and then you try to slice and dice that into whether any of those changes now kind of count or change the law today.
So the positive turn had us looking at our general practices today and those now sent us on a treasure hunt under original law originalism to go look for the practice or the law back at the founding and then try to figure out how it's changed. So it's kind of the second step in what originalism is. Does that at least makes sense in terms of where we are? I feel like I actually made it more confusing.
Adam Chilton: It makes some sense but the differences between originalism, positive law originalism, and original law originalism, I think it could probably be teased out a little more, or a little better. So let me start with this. So my understanding is that modern originalist scholarship dates back to, I don't know exactly when, but the '70s or '80s, and the positive turn dates to 2013, and this original law originalism is perhaps even more recent than that, although, what, five or six years old. But then there was still this period of 30 years or something when people were saying that they were originalists, but didn't have these two arguments.
So what is it that they thought during this time about how to interpret law, or what the constitution meant, or whatever that was different during this period before the positive turn in the original law? Because when you say the law is the law until the law is changed, it doesn't sound like that complicated of a move, and so what is it that people thought?
Will Baude: Yeah, there were two different changes going on before then. One was in terms of what kinds of arguments, why the originalists? And those we talked about some already, where some people wanted to be originalists because they thought it would constrain judges, and some people thought it would lead to better outcomes just in general. And that's definitely changing during that period and the positive turn is a new kind of argument. But in addition, the sort of original what was changing?
So the first original scholarship that we're counting on sort of the modern era often was called the original intent. So the idea was, look, this is just not what the framers were thinking about, when they said the fourth amendment, they were not thinking that it would lead to exclude evidence, let criminals go free. When they said free speech, they were not thinking about pornography and advertising liquor prices. So it started as a kind of like the original intent of the lawmakers. Then people criticized that, lots of the grounds that have been used against legislative intent generally that it's not clear that the collective authors of the constitution can have one intent because they all wanted different things, it's not clear how we know what their intent was, it's not clear why we'd care about their intent.
So then there was a big move, they called themselves the new originalism, where they started caring about original meaning, that it's not original intent, it's original meaning, original public meaning. So we should look at the words and ask not the author's thought, but what a reasonable, well-informed person would think those words meant. And it was very heavily about if you open the constitution, what do those words mean? And then original law is sort of the move away from that a little bit.
Adam Chilton: Got it. And how is it a move away from that? What's the distinction?
Will Baude: So two important things. So one is rather than focusing just on what a member of the public would think when reading the words, it's specifically about what a lawyer would make of the constitution. So when there are differences between the general meaning of some phrase and technical legal meanings, original law is much more committed to the technical legal meanings, which is a debate that matters in originalism.
The other that's maybe even more important is it's less about the meanings of words at all. So rather than trying to figure out what freedom of speech meant by asking what speech meant and what freedom meant, or even by searching databases for freedom of speech as a phrase, you sort of instead try to look on the original output side and ask what legal doctrines do people think freedom of was speech produced? What legal rules do they actually think are produced, where they're worrying so much about linguistically how they got there.
Adam Chilton: Got it, okay. First off, so relevantly, it seems that it's moving away from this both original intent and original meaning move to just whatever the rule was at the time and not what people may have thought the rule was at the moment that they were enacting it, whether or not it was the enactor or the general public. Why was the concern at any point about what the enactor and what the original meaning is? Because I got to say, when you say we're just going to like look through the James Madison's diaries and that determines what the constitution meant, that seems always problematic, but it's weird that originalists ever made that argument because Scalia's the person that made that argument most persuasively about every other law. So why the blind spot when actually, it applied to originalism or to the constitution?
Will Baude: Yeah. So I think in election history, I think it started before Scalia had come on the seat, and before he'd won. So it was more like everybody accepted in the late '70s, even early '80s, common ground was, well, when you look at a statute, you're of course just looking for legislative intent, that's what everybody thought they were looking for. And so, the originalists were like, "Well, we're looking for the meaning of the constitution, we'll look for legislative intent as well." They thought they were doing the same thing as statutes because that hadn't fully moved.
I think if your goal is constrained, if your goal is to say we're against people making stuff up or against having these things be left open-ended, the more you can look at one person's views, the more likely you are to get something you would at least call constraint out of that. So like James Madison would've been shocked and appalled to see the food and drug administration out here, and so that's a sign that we can strike it down.
Adam Chilton: Okay. All right, so people thought this was a good idea, and then Scalia pointed out it was a bad idea for a bunch of reasons. And they were like, "We actually don't mean that, we mean some other thing we're doing when we're doing originalism."
Will Baude: Yeah, I mean more like people said, "This is a bad idea/it's not really possible, so it can't really be what you're looking for." And originalists thought about that for a while, and then ultimately, took it on board and said, "Good point, intent ultimately doesn't make sense, it can't be the inquiry. So what are we looking for? We're really looking for meaning." Now, this is a whole question of like, isn't that different? Because when you're trying to figure out what the words mean, you still end up going back to things like what James Madison said the words meant. It's technically different because you're not asking what did James Madison think, you're asking what did the words mean and what he thought is evidence what the words mean. But very little evidence of a serious delta between original intent and original meaning that anybody's come up with.
Adam Chilton: Yeah. What's the delta between those two things and then this thing you're doing though, or not that you're doing, but original-law originalism? Because that's the real question, is when you say, "We don't care what the intent was, and we don't care what the words mean, and we don't care what people thought the words mean in the late 1700s, what we care is what the law was in the late 1700s and what the best understanding of what the legal restrictions were then." And so, are there even any clear examples where you can say, "Here's how we get it right with original law originalism, but we would get it wrong with a different form of originalism?"
Will Baude: Yeah, I think so. So on intent versus meaning, I'll say I'm not sure there are any, the one that might have [inaudible 00:10:31] recent scholarship is maybe in executive power. So there's pretty good evidence that the framers of the constitution itself, when they set executive power, they had in mind something like the royal prerogatives of the king, even like their exchanges where they even talk about their kind of... their default working assumption was the president to have all the powers of the king, except the extent they took it away in the constitution. And so, they spent a lot of time saying, "Okay, we got to rewrite the treaty power to sure that the Senate has a power to sign on because otherwise, that would go to the president because the king used to have it."
But in terms of public meaning like when the constitution [inaudible 00:11:04] for ratification, there was not the same assumption that the president was automatically like the king, and there was a widespread assumption that the president was not like the king, and that a bunch of those things didn't carry with it. And so, you just like, in the same time period, the people actually, right in the constitution, had one set of assumptions that they then didn't widely share when the public was reading the words, and so we might have a very different interpretation of executive power depending on whether we care about intent versus meaning.
Adam Chilton: Got it, okay. But then the implication of this, so we've got original intent, original meaning, and then original law, is three different originalist theories for what is binding on us today. In this case, you're saying here is an instance where original intent and original meaning are not identical and maybe these views on whether or not the president has all of the king's powers is a place where there's disagreement. Then for original law originalism to come in and produce a different answer, it basically just has to adapt one of these theories of what was the law at the time, whether or not what people thought was the law, or what the intent was, or what the words were. So it's just got to endorse one of these views, so it's going to collapse into one of the others. How do we even know what the answer to that is?
Will Baude: Yeah. Okay, so good. So one big difference is that for original law, the answers to these questions, intent versus meaning versus something else, are historical questions, they're not talking about priori, but it depends on what was the widespread view of the law at the time. So we can resolve the intent, meaning conundrum, by looking at all the legal principles for interpreting texts, which mostly favored meaning not intent. But it also means that something like whether David Strauss is right about that it's really all just like unwritten common law, is also a historical question.
So one of the things that makes other originalists the most nervous is they want to be able to rule out a priori, anything like the common law constitution. They want to say, "It's just built into originalism that the meaning of the words is fixed and that's what it is being originalists." And original law originalists would say, "Well, it depends. If they, at the time accepted a kind of form of common on law change where words weren't fixed, then that's the original law and we ride it all the way to the day. And if they didn't accept that, then it's not." So finally, we can get some traction on... it puts to the historical test, how much we care about stuff like common law constitutionalism.
Adam Chilton: And what is the answer on that basic question though, whether or not they accepted something like the common law?
Will Baude: So I'm working on this. So far, I have not come up with enough confidence to publish anything on this yet, but so far, I am 75% confident that they rejected anything like modern common law evolution. There's virtually no reference, even 100, even 85 years after the founding, to stuff like judge-made law, or judges have the power, having the power to deliberately change or evolve things. But I'm also 75% confident that they didn't think that everything had to be fixed. They understood that sometimes the law did evolve slowly, but basically through each judge trying their best not to evolve the law, but over time, their collective decisions would sometimes push the law in various places. So not David Strauss, but not quite nothing.
Adam Chilton: Yeah. Although it's so weird to go look around for whether or not... I mean, it's not weird, but to look around for whether or not people talked about judges changing the law in that pre-legal realism, let's say pre-1910s, pre-1920s, whenever we want to say legal realism starts, everyone just would at least play along with the fiction whether or not they believed it or not, that what judges were doing is like there is a thing that is the law and judges are finding that law or whatever, and that their preferences, their policies, whatever, don't factor into whatever the law is. So people just were never explicit about this, but then to go and say they never said that they were doing it can't really answer the question of whether or not they were doing it.
Will Baude: Yeah, this is right. So there's still a question about how much do we care about kind of the formal rules for what they could do, and how much do we care about the kind of in turn, what they get away with. I am interested in both. But even just pinning down the formal rules, I think is really helpful. If there's a widespread norm that judges feel like they have to comply with, that when they update the common law, they have to say it's in light of this and this, then that's useful. And also, useful because it shows, I mean, again, contrary to what some more fixed originalists would say, that sometimes they could update the common law if they found this and this. So part of this was just figuring out what the formal legal rule was and then I am also interested in the other.
So far, this is actually my own surprise is I thought when I started this project, there were going to be a ton more examples of judges obviously changing the law in dramatic ways and kind of hiding it, and I went to look for a bunch of them in places that I'd been told they were. And in fact, there was just much less change in the law than I expected. I try to think of every common law doctrine you learn in torts as some dumb thing we had 200 years ago that's gone now, the doctrine of civil death, the feet tail, et cetera. And virtually, all the big highlights I started with were all actually abolished by the legislatures rather than the courts, which maybe I should have known, but I was just surprised. I'm still finding some where there's like judicial transformation, but-
Adam Chilton: Hold on, judicial transformation of just like any common law doctrine or judicial transformation of constitutional doctrine?
Will Baude: This is just any common law doctrine, just to get a sense of like... You teach torts, so we know whatever, they didn't believe in negligence, they only believed in strict liability, and somehow the judges in the 19th century invented it without telling us they invented it, that's what I learned in torts, on the one day we talked about history. I'm trying to pin that down and actually find the cases where this supposed change happened, it's proved more elusive than you would believe if you didn't read the footnotes. That's just to get a sense of this first sort of question of how much common law change as a general matter, because if it's a general matter of judicial power judges were understood to have the power to evolve the meanings of the law, that's an important background.
Adam Chilton: So there is a I think it's an artifact of the way that we teach more than the way that the law happens, is that often people think there's going to be like this specific case, it's the sharp break, and so we'll say like, "Oh, this is the case where we got rid of privity, or we extended strict liability, or we got rid of the traditional duties of trespassers to land or whatever." And you teach it as like the case where it happens.
And then of course, the truth is that there's cases going back years that slowly moved in that direction and came up with exception after exception, after exception. And the case that's the famous case can basically get away with just saying this is already the rule. And that's what happens with, I don't know, the case, for instance, that all of our students will know is the line of cases that get rid of privity and build modern products liability doctrine, it's often taught as a series of seminal cases, and each seminal case has 15 other cases they can cite to build to that conclusion.
Will Baude: Right. And this is right. This is an independently interesting research project to me. I don't actually care that much. I mean, I kind of care, but I don't care that much whether it produces the answers I'd like about digital discretion. I'm just interested in trying to understand the different intellectual framework they used for... Because judges now don't have to do this. I mean, sometimes now judges do this, but you see more explicitly seminal cases in today's common law subjects, you see more cases where the New Mexico Supreme Court is just like, "Well, we decided today that this doctrine is outmoded and we hear by abolish it."
Adam Chilton: Right, sure.
Will Baude: And you used to see that and I'm kind of just trying to understand why not and what the moves they were that they used instead.
Adam Chilton: Got it. I feel like this is like peak originalism. Your new originalist argument is that even the common law was invented in the 20th century.
Will Baude: We might be going there. Again, if you ask some of my friends and colleagues, they are convinced that there was no such thing as legal changes in the common law in the 19th century. So I'm also coming at this from a little bit of skepticism about the very hardcore anti-change position. My sense is that some moves were allowed, but some were not allowed. I feel like I get these oversimplified descriptions of this from everybody else and I'm trying to figure out what it was. But whatever the answers... Go ahead.
Adam Chilton: What an originalist fantasy land that think how amazing it was in 1840, nothing could change ever, how perfect?
Will Baude: Yeah. So this is leading us away from it, but I think it's... I mean, I often feel like when I'm reading debates between originalists and non-originalists, there's weird oversimplifications on both sides and sort of... but I read like anti-originalist saying, "Well, if the originals got their way, there would be no..." We talked about this already. There would be no administrative state, segregation would be everywhere, judges would never be allowed to do anything. And then I also read people say, "Well, no, actually, we've been doing this forever, it's always been part of our system." And so, I find myself just trying to figure out, what's really going on? What moves were there, moves weren't there? And usually, it's something kind of interesting. Sometimes it's something that obviously I wouldn't want to do anymore, and sometimes it's something that actually might be useful.
Adam Chilton: All right. So I think that originalists particularly make both of these arguments and it's often the same people, which is, here's something radical that we should have now because of originalism. And then in some next breath, or the next section of the article, or whatever else to be like, actually, don't worry, it won't be that radical. And there's often a disconnect between, I don't know, maybe the political promises to say all the outcomes you can get and the methodological claims of how different things are.
Will Baude: Yeah.
Adam Chilton: So it'll be like the whole administrative states run amok and we need to change things and be like, "Actually, we've never had a non-delegation doctrine." And so, there is this disconnect that just is constantly there.
Will Baude: Right. Look, sometimes it doesn't happen the same scholar. There are some original scholars who are proudly willing to be just put in the crazy nutcase category. So like Gary Lawson has a famous article called The Rise and Rise of the Administrative State, which is the, "No, no, we really should kill the administrative state." And then in the second part, it's like, "No, no, we really should kill the administrative state." He doesn't try to walk it back, but I agree.
And I think some of this is just unfortunate incentives of lawyers and law precedence, as you simultaneously want to say things that are interesting, and novel, intellectually ambitious, and yet you also want courts to adopt your argument and, or want your colleagues not to throw tomatoes at you when you walk to the factory lounge. I'm not sure you should care about those second things, but people do seem to care about them, and so you end up trying to have it both ways.
Adam Chilton: Got it. Yeah, that does seem to happen. People trying to have it many different ways at once on whether or not it's radical, or gradual, reasonable or what. So let me ask about them methods of this then and the methods of arguments, which I all find quite frustrating. And here's what I mean. So I spend a lot of time reading and engaging with what I would call methodological scholarship, but here methodological scholarship about how to conduct different kinds of empirical research and including qualitative empirical research, quantitative empirical research, what methods should we be using for what kind of problem. And this can be sort of general, like how to pick a case study for a scholarship, or really specific like what's the right way to deal with your standard errors and with sort of kind of panel data or whatever.
Okay, in this form of methodological scholarship that exist in other disciplines, in political science, in economics, in psychology, the standard move when you write a methods article, is you explain what people have been doing, you document instances of where that use of that method has caused problems, and then you show your new method and show how your new methods solves those problems. And so, it's specifically tied to applications and showing superior performance on these applications in a way that is outcome consequential. Because the basic feel is, if you don't actually produce better outcomes in some way or different outcomes, it's not worth us all learning some new method or new trick and just wasting a bunch of our time. And so, you really need to document outcome consequential changes to convince anyone to change anything in methods in other disciplines.
But in originalism, there's this weird move where originalists are spending decades debating the exact methods and then never willing to talk about what the outcome consequential difference is and what the stakes of the debate are. And people are like, "Well, there might be a difference between these methods." And then it's not clear to me what those differences are and without understanding those differences, it's really tough to have a view of what's at stake in these debates.
Will Baude: So I think this is a problem with law, but in general, for a law that isn't law and econ, or law and political science, or even law and philosophy or adjacent to some field with real methods. And you may recall that we hosted a symposium a couple of years ago in an attempt to kickstart a lot of professors into thinking and carrying a lot more about methods in a serious way like other disciplines. My sense is we failed to take the legal field by storm with that project.
Adam Chilton: Also, my interpretation of the subsequent events.
Will Baude: I still believe in it. We did get an originalist, Larry Solum to write an article on originalist methodology, that did try to at least think about these things more, but I'm with you that it doesn't happen the same way as in other fields. I worry that part of the reason is we rarely, even after the fact, completely agree on who was wrong. We don't have a system where we can all agree 10 years later, that this was an error and therefore, we should prefer a method that didn't reach this conclusion later. So I don't know what to do about that, but I worry that's part of why we can't get there.
Adam Chilton: That said, I think we can do one of the original law, I think I've got one. Okay, all right, so let me say one thing, I do think part of what's going on with all of this, is that the methods debates are in response to normative criticisms, which is something that's slightly unique about law. And what I mean by that is, someone says we should be in 19, whatever '77, it's like, people will say, "Hey, we should be originalists and we shouldn't care about original intent." And people say, "Oh, actually, looking at legislative intent is silly because legislatures, are they not an it and who cares what their diaries said." People are like, "Wow, that's a good criticism, we'll look at the original meaning that's justifiable." And that was public and everyone had access to it. And what people thought they were ratifying and voting for should matter, that's normatively powerful. And then someone else comes along and says, "Well, actually, the words that lawyers use and the words that the public's use are often different. And in general, when this happens, we think that the legal meaning is what's relevant and not whether or not the uninformed public has some view on this, et cetera."
In other words, the updating to the method of what we should look like, is entirely driven by objections to it. And so, people are trying to evolve originalism to try to fend off criticisms, not to try to build the method that produces the most reliable results, the most consistent results, the most easy to determine results, whatever that would be based on the results based outcome.
Now, the reason why I think this is particularly frustrating in the case of originalism, goes back to our very first conversation on this topic, our first episode, which is that so many of the justifications for originalism are instrumental. And so, to update your methods based on normative complaints, when your reason to have the method is an instrumental claim, it matters whether or not the method is instrumentally useful in these ways. So people said that this will ring in judges or produce predictable results, whatever, and these are instrumental arguments to the originalists. And so, it matters how the method works.
Will Baude: Yeah, so I think this is right, and this is part of what really frustrates non-originalists, is I think therefore the instrumental justifications for originalism also changed. So originally there was a package of original intent and it's to discipline judges, to stop them from making stuff up. And then there were theoretical normative challenges of the use of original intent that were persuasive and people abandoned original intent or placed with original public meaning. And it turns out that original public meaning is not as good as constraining judges. And so, people who were really locked into the constraining judges' rationale, either stop being originalists or refuse to accept the change in methodology. But most new originalists were attracted to it for a new reason and then say an evolution.
I mean the size of the tent and the amount, which the... It's not the people mostly because there's enough additional change, but the way which what your immediate originalist cares about and even what their justification is to the methodology has changed a ton at each phase, which makes the whole having one label for it almost misleading, maybe we should have multiple labels.
Adam Chilton: Got it, okay [inaudible 00:28:37]. But you say you had an example here.
Will Baude: Okay, sorry. Well, let's do an example. The error that original public meaning and original intent people have both fallen into, is they find themselves unable to explain any kind of unwritten law, even though this was a major part of the law at the founding and remains a major part of constitutional law doctrine today, like doctrines of sovereign immunity, which have always been a part of unwritten law for the most part. They mostly can't be found in the constitutional text and this has confused people and occasionally caused originals to think maybe they don't exist, even though they've always existed. Or same thing with individual rights. If you just try to look up freedom and speech in the dictionary or look it up in Blackstone, you'd think it only applies to the government trying to come and take your printing press. But if you look at unwritten law more broadly, you can find people all the time, thinking freedom of speech is a much broader, more important freedom than that. And the original meaning and original intent people kind of disregarded all that stuff because they were like, "Well, it's not in the text, so don't care about it." And that I think caused them to make serious mistakes about what constitutional law is. An original law can explain that, find them, and that's a reason we should switch to it.
Adam Chilton: Okay. A concrete example is sovereign immunity, is there a constitutional problem with sovereign immunity because here's what's confusing to me on this slightly, is I thought one of the originalists current moves was to say actually qualified immunity is all made up, which I know is different than sovereign immunity. Explain to me this sovereign immunity thing in more detail.
Will Baude: Okay, so it's well established at the founding that states are supposed to be, you can't sue a state without its consent. You can sue the officers, you can sue individual people, and they have to pay just like anybody else, they're not above the law, that's the qualified immunity thing, but you can't sue the state itself, you're supposed to sue individuals.
But the constitution doesn't have this rule in it. And the constitution does have the 11th amendment, which has a much narrower rule, that says states can't be sued by people from other states. And so, for decades, a century, there's been a question about, well, can you sue a state generally? Is there some general rule against suing a state without its consent? And the correct answer, as a matter of original law originalism is yes, this has been a common-law rule all the way since the founding-
Adam Chilton: Hold on, yes, yes to what? Yes, you cannot sue a state or yes-
Will Baude: Yes, you cannot. You cannot sue the state without its consent.
Adam Chilton: Got it, okay.
Will Baude: That's just a fundamental legal principle that goes all the way back to the founding. But originalists among others have got confused about that when they tried to do original public meaning originalism because they couldn't find a sovereign immunity clause in the constitution.
Adam Chilton: Got it, okay.
Will Baude: I mean, I don't know whether it matters or not, but it's not like you couldn't sue people at all, you could sue the officers, they were supposed to pay just like anybody else, they weren't supposed to be over the law. And indeed, once you got confused about that, this is part of what gave rise to stuff like qualified immunity and other forms of made up immunity. And some people thought, well, I guess we're making up immunities that didn't really exist, so let's just make up some more. And so, people then took the mistake about sovereign immunity, then led judges and others to also start making up other kinds of immunities, which throw the whole system out of whack.
Adam Chilton: Got it, and the other immunities they made up are qualified immunities. Is there other immunities that exist? I mean, well, there's foreign sovereign immunity, there's head of state immunity, et cetera, but those probably all predate the founding. I mean foreign sovereign immunity, certainly.
Will Baude: Probably do. They made have absolute immunities. Qualified immunity means you can only sue a police officer for really egregious constitutional conduct, but for prosecutors, and the president, and a couple of other officials, you can't even sue them fully egregious of the conduct, you just can't sue them at all, that's also made up by the same process.
Adam Chilton: Got it, okay. So we think that you could have sued George Washington if he had stolen money in whatever, 1790.
Will Baude: Yeah, probably. But the president's the toughest one for weird reasons.
Adam Chilton: Right, sure.
Will Baude: But definitely, you could sue a prosecutor who made up evidence against you to prosecute you or take your stuff as prosecutors do all the time. You could definitely sue them, and people did.
Adam Chilton: I mean, what's the equivalent of this in the 1790s? What's the earliest instance of people suing, claiming that they were beaten, assaulted by, I don't know, a customs official or interstate ferry officer, or whatever they had then?
Will Baude: Right, so it's customs officials and tax collectors. And yes, I mean, wasn't always the beating they cared about, but there's a case in the Supreme Court from 1802-3, called The Flying-Fish, where a sea captain is seized without probable cause and the person seizing him made a reasonable mistake in thinking that he had a probable cause, misunderstanding the nature of the embargo of France. And he sues for damages, and it goes to the Supreme Court. And Chief Justice Marshall writes an opinion saying, "Gosh, it seems kind of unfair that the sea captain gets sued when he made a reasonable... or the military officer can get sued when he made a reasonable mistake, but that's the law and if he doesn't like it, he should go to Congress and get indemnified." Which he did. So you see that all the way back then.
And you see police officer cases, certainly in the 19th century, once we start having police officers the fact of which are just like today. Police officer arrests and mistreats a person who he thinks is an illegal vagrant but he doesn't actually have any evidence and the person then sues, and can get damages, and doesn't have to show anything special.
Adam Chilton: Got it, what time do we get the change on that? We're now far-field from original law originalism, but I'm curious.
Will Baude: No, I think of this as an application of original law originalism. So in the 1960s, Chief Justice Earl Warren is the one to create qualified immunity, starting in a desegregation case, where some Southern police officers kicked people out of a bus terminal, unconstitutionally. And they were relying on a Southern segregation statute that hadn't been struck down yet. And so, Earl Warren said, "Well, they didn't know yet that this was not going to be okay, so we'll let them off." And then the Warren Court and the Burger Court create the immunity doctrine.
Adam Chilton: No, wait a second, you're saying that qualified immunity as a constitutional doctrine, was created by Earl Warren in order to help segregationists.
Will Baude: Yeah. So it makes sense from his point. If you're in the business of creating a bunch of new legal doctrine, which the Warren Court was, then one of the ways you make that legal doctrine go down easier, is if you say, "We're going to create a bunch of new legal rules, but we're not going to hold people individually liable for violating them until we've been really clear about them." You had to move to a judicial law-making mode, you need something like qualified immunity to make the new law go down easier.
Adam Chilton: Got it, okay. Yeah, I mean, I guess that makes sense. Here's, what's weird about it to me, the basic rule of qualified immunity that unless something is clearly unconstitutional and that the officers have noticed that doesn't really make sense to hold them accountable for a violation, I feel like you can just get that there with the ex post facto, the clause or something like that, without needing the whole qualified doctrine setup. But it seems like qualified immunity now doesn't just mean have we ever had this rule ever, it's like has police officers beaten this person in this exact specific way that the Supreme Court has ruled on.
Will Baude: The doctrine is now way more strict than it was when Earl Warren invented it. So it went through a second period, the 1980s, when basically modern conservative skepticism of tort law caused them to reform as a doctrine to make it even harder to get discovery or to go anywhere, because they just generally didn't think this... They thought there were too many frivolous claims even under qualified immunity doctrine.
Adam Chilton: Got it.
Will Baude: And then more recently it's gone through yet another phase of just now, a red light goes on in the Supreme Court to warn them anytime an officer anywhere in the country might be held liable, so they can rush in and try to stop it. But that's where it started. And I guess so to advertise, so this is kind of the original law originalism says is, "Look, we can look back right after the 14th amendment is adopted and see all these people suing and enforcing the law directly without any special rights for police officers." I guess they get due process rights or whatever you and I would get if we were sued, but nothing special.
And then we can see where it came from. We see where the doctrine moved and so, we can go analyze that and ask like, "Were any of Earl Warren's basis for doing that legit? Did you have any legal authority to do that?" And if the answer is no, then we should reject it, stick to the rule that would've been there before Earl Warren monkeyed with it. And if he's got some good legal source of authority for it, then we let him do it.
Adam Chilton: Got it, okay. So how can someone believe this thing though, about getting rid of... Let's say hypothetically that I thought that getting rid of the modern version of qualified immunity is a good idea and that the current version is just much too permissive, whatever, too tough to sue cops for beating people, or whatever it may be. So let's say you hold that view, how is it that you can get rid of this Earl Warren judicial innovation and still keep Brown v. Board, and Gideon v. Wainwright, and other things that seem important? Is that the price I pay for qualified immunity? In which case, too high.
Will Baude: Okay, you can definitely keep Brown versus Board of Education. There are at least two ways. One is there is lots of evidence during and after the 14th amendment that people thought it would desegregate schools. There's a lot of discussion about it. Congress comes within a couple of votes of large super majorities to specifically require school desegregation. The New Orleans schools are desegregated under the 14th amendment right after, during reconstruction. So there is historical evidence that that was understood to be part of the amendment originally, that very quickly gets killed by the Klan once the Klan takes over and we stop enforcing the law. Brown really is recovering some of that.
And even if you didn't buy that, I think you could very plausibly think that the original law of the 14th amendment allowed some amount of evolution. If you wanted to be a common-law constitutionalist for just one part of the constitution, the strongest evidence would be that you should be a common-law constitutionalist for the 14th amendment. And there was more evolution built into those provisions than the rest of the constitution. So you can get Brown either way.
Adam Chilton: Got it, okay. So I mean, it makes sense to me that the 14th amendment is going to be a place in the constitution, where it seems that we're using intentionally vague standards like language to allow for the possibility that our standards would evolve and that we're not specifying, we need to pass amendment that went through and said A, B and C changes have to take place. We didn't say that there has to desegregate schools and I don't know what other issues, desegregate public transportation and the federal bureaucracy, we said equal protection and due process.
Will Baude: There also seems to be a lot of strategic ambiguity. I mean, you can read these really frustrating speeches. Right in the 14th amendment will say, "Oh, people say this amendment is going to have all these effects or it's really unclear, but these are really well established legal terms and you can see what they mean, just go read the cases." But then you go read the cases and it's not clear what they meant, there just seems to have been... So it's a mix of intentional ambiguity and maybe just trying to get this thing passed, strategic ambiguity, but the language and the circumstances of passage do suggest that's an amendment that might have a lot of different consequences than everything else.
Adam Chilton: Got it. I mean, that makes sense-
Will Baude: Gideon is still really-
Adam Chilton: What'd you say?
Will Baude: I said Gideon is still really tough. I'm not sure, look, this used to be a game, originalist would play in private, I guess we'll do it in public is like, what is the case that is the most well-established, the most impossible to imagine doing without, and also the hardest for originalist to justify? Because it's not Brown. Gideon is probably the toughest, the most unthinkable to get rid of and the hardest to get there. And I think you can get parts of it through squinting your eyes to the due process clause. Pre-Gideon, there was this idea that like, well, the state can't have it both ways, they can't both have super technical legal rules, where if you're not careful, you waive everything and you're constantly unable to defend yourself because you're not reciting your motion in poetry and I'll let you have a lawyer, that seems right. But to go further than that and say like, as a categorical rule, even if the procedures are not that complicated, you have a right to a lawyer in every kind of proceeding where you have more than six months jail time, is really hard to find.
Adam Chilton: Got it. Yeah, that makes sense to me that that seems like a clear shift. And there must be other criminal civil procedure things like this, although maybe Gideon is the most critical and things around, I don't know, unanimous juries or the concentration clause or other decisions are just not as fundamental to get rid of.
Will Baude: Yeah. I think what's happened is, what's happened practically is, the court has been much more willing to recover things like unanimous juries and the right to question the lab tech that did have a stronger common law historical basis. I mean, some of the court's most aggressive originalism has been some of these defendant's rights cases.
But yeah, there's other stuff that the right to have exculpatory evidence against you disclosed or the right to have illegally obtained evidence excluded, the exclusionary rule. They are also harder to justify, but it's not as unthinkable, I think, to lose them in part because the court's been cutting back on them for decades anyway. I mean, it's not that they don't matter, but you already can talk to plenty of people who say they've been overruled in practice, so it's not as unthinkable.
So I tried to write a contrarian article about how getting rid of Gideon wouldn't be that big a deal and maybe it would be better for criminal defendants, it didn't work. It was not right. I thought it would be a really great contrarian article to write. And just in case you wanted to know, I actually do abandon projects with contrarian takes, so I become concluded they're too crazy and even I don't believe them.
Adam Chilton: That's the line, criminal defendants don't need lawyers, that's the one step too far.
Will Baude: Well, the move would be to say... So first of all, there is... For criminal defendants who go to trial, per se, their rates of success are not materially different and sometimes better than represented defendants. We don't have natural experiments, so it's hard to know what to get from that. But just at a first cut, it's not like, oh, obviously different. I mean, in a world without government-funded criminal defense lawyers, presumably, there would be some amount of foundation, charitably funded, the government doesn't fund the ACLU, but they still are out there doing a lot of good. So presumably, there'd be some amount of legal organizations still doing this work. But anyway, I concluded that the sixth amendment is doing a lot of work.
Adam Chilton: Yeah, I think that's right. Yeah, sure. There are reasons to think that if we did not have full Gideon rights, that the equilibriums would change in some ways, that push back in favor of criminal defendants, like for instance, more charitable giving, doctrines that was more permissive, et cetera, but yeah, I don't think you can get all the way there.
Now, okay, let's get back to original law originalism though. So original law originalism, the kinds of cases that are the most difficult for originalists to explain away or to deal with, are going to be features of our constitutional system that we now have in place, that seem important, fundamental, et cetera, like for instance, Gideon v. Wainwright, or the right to same-sex marriage, perhaps is a more recent example, et cetera. I take it that original law originalists have no easier case explaining the most difficult cases here.
Will Baude: So I think that's wrong because original law originalism leaves open some possibility of common law constitutionalism if it was part of the original law of an amendment. Original law originalism might get to Obergefell, in that, it might be the case that the meaning of equal protection and due process was supposed to evolve and that's how we get to Obergefell. And that's actually what the court says in Obergefell, where they say, "The meaning of Liberty in 14th amendment." They even say the framers of the 14th amendment knew that the word liberty would evolve at the time because they didn't have a full understanding of what the scope of those rights would be, and so, that's why we can do this. So they're actually making an original law argument. Now they don't sustain it with a bunch of evidence or anything, which courts rarely do, and I'm not sure it's right, but that's part of why I'm doing this common law change research project.
Adam Chilton: Yeah, I feel like once you combine the combination of the positive term and original law originalism and then make these concessions potentially on the 14th amendment, you've just rebranded common law constitutionalism, is really what it seems to be. And that I think that the standard view, that not necessarily all law professors at all time, but the current common law constitutional view is something like the text matters, it certainly matters the most when it's enacted, certain parts of the text are written in these ways that were meant to evolve, and as they evolve through judicial decisions, and interpretations, and new cases, et cetera, that that evolutionary process is natural, and fined, and acceptable, but we think that that takes place with, I don't know, the 14th amendment, but we don't think it takes place with the number of people in the Senate. And if you're conceding that then what are you guys up to?
Will Baude: So look, so there is an alternate, there is a nearby possible world where I am not an originalist, but I'm a common-law constitutionalist with the new common law constitutionalism. That's not that different from this, but I think it's different. So I think it's much more historically falsifiable. So common law constitutionalists just come in and say, "Oh, the definition of we can be in the Senate, that's obviously supposed to be fixed, whereas oh, freedom of speech, that's obviously not supposed to be fixed." Without looking at whether people thought it was supposed to be fixed, or without any evidence other than their own modern, linguistic intuition of was fixed or not. And the original originalism was not that, we have to actually go in and do the work and see which provisions [inaudible 00:46:46] to be fixed and which weren't, which I think is a big and important difference.
And similarly, the method of common-law change that's allowed is not what you would think of common law change as being just from reading Richard Posner opinions. It again has to be grounded in how the common law actually worked or was actually understood to work. So I think it could be, and maybe I'll rebrand as a common-law constitutionalist someday. Jack Balkin rebranded as an originalist 10 years ago, but I think it is importantly different if you care about how these things actually work.
Adam Chilton: Yeah, here's my prediction. You won't rebrand as a common-law constitutionalist if originalism is the minority viewpoint, but if originalism becomes the majority viewpoint and then you want to tilt against their windmill now, that's when rebrand happens. The thing that'll stay constant is the contrarian streak, the label is what's variable.
Will Baude: I think that's a flattering prediction.
Adam Chilton: Sure.
Will Baude: I don't care that much about the labels. Yeah, I struggled a little bit with whether to use the originalist label and eventually just got impatient, it was easier to use it than not.
Adam Chilton: Well, let me ask this though. So it feels like then a lot of what's going to happen is, like the Steve Sachs of the world are going to be like, "No, some evolution of the constitutional meaning that's allowed for certain clauses because that was what was understood to be the point of things like equal protection and due process, and so, we need to allow for that. But before we allow for that, we need to really document that that's what people meant." And they're going to scold the common law constitutionalists along the way, and then they're going to go do the homework and then we're going to end in the same place. So it's really just being mad that people cut a corner or something. Do you think we're going to end in a way different place?
Will Baude: Maybe, I mean, look, this is back to the methods conversation. I mean, it's hard to know before you do the work. And if it turns out we've been getting the right place all along with just some sloppy corner-cutting, then this is a matter of literally only academic interest. I kind of doubt that, I kind of suspect there are going to be some differences.
So already, it's actually pretty clear that due process and equal protection were not supposed to evolve, they were both actually supposed to be very well-defined terms that didn't extend that much, the real question is whether privileges or immunities clause, the constitution that the Supreme Court has been ignoring for 150 years was supposed to be... and it was supposed to be doing all the work, was what that was supposed to mean. So I assigned myself a seminar on the original meaning of privileges and immunities clause for next quarter to force myself to get to the bottom of this. But the fact that we've already made assumptions about some of the clauses that aren't correct, doesn't make me think, "Oh, clearly it's all going to be the same."
Adam Chilton: Yeah, so here's one thing that's all is frustrating about public law is that people like to cycle between due process, equal protection, privileges immunity, and the 10th amendment or whatever it may be, these different constitutional locations for their arguments and say like, "I'm not in favor of what the court was up to in this string of gay rights cases, however, I would've done that for just a different reason." So it's like this weird moving target thing where... Now, I get which clause we use actually should matter but given that they're all being interpreted in these different ways over time, it's often kind of a weird debate.
Will Baude: Well, I think this is actually very related to the original law originalism for two... So I think this is a sign of how much in public law people care about the sort of historical pedigree of your legal rule, that everybody feel... Even living constitutionalists feel they need to ground it in a clause and to care about which clause they've traced it to whereas you could imagine a world where people are like, "It's a good point, it doesn't matter where you put it."
And I think this is also a sign of the overly strong influence of original public meaning and textualism, the obsession with tracing things to a clause, because sometimes the truth was that didn't trace to a particular clause even at the time. They weren't always textualist in the way that we expect them to be. But I agree with you, I think this is the broader... I guess this is back to your original point, that like in public law we frequently make methodological changes because of general theoretical critique. People say, "Well, it doesn't make sense, the arguments derived from this clause, that's a big problem with your argument, regardless of whether consequences are right." And so then, people have to come up with a new clause or a new source.
Adam Chilton: Yeah, that seems about right, there's a lot of that going on.
Will Baude: So just a couple of minutes left. I have a question. So as somebody who actually cares about being rigorous in a way most lawyers don't, do you think this problem is fixable or is this inherent in law? So part of why I wonder is, is it possible that the problem is that there's no inherent truth or something in law, so we just have to be doing something different than-
Adam Chilton: So I think that it's theoretically possible that academics could reach some sort of conclusion or compromise on the right methods or something much closer to us understanding than where we're at now, but once you bake in the political ramifications of it and the politics, no, I don't think so. Because roughly, what we have is that there are competing conceptions about what the role of the government is and what the government is and is not allowed to do, that if, for whatever reasons, codified into a liberal position and a conservative position. Both politicians and members of the Supreme Court are going to advance those visions based on which team they're on. And so the idea that we could have some sort of neutral method that both sides would dictate the outcome of these cases, doesn't seem right to me. And once it's the case that the political players aren't going to let some neutral method push around their power and their priors, I don't think that it's in most law professors or lawyers interest to say like, "Oh, well the rest of us all agree these Supreme Courts members are just politicians."
So what everyone's going to do is write the version of their argument, that they think can convince the median justice on the Supreme Court. And so, whatever that is, I assume it's Kavanaugh now, or Roberts, or whoever we think it is that we're writing to. So no, I don't think so. I mean, if we were starting from scratch and designing some new legal system in a new country, where these debates weren't codified over 200 years, maybe we could, but no one's in anything remotely approaching an original position, so to speak.
Will Baude: Yeah, I mean, I guess the one advantage is things do change fast enough, that people frequently end up, I don't know, being forced into not quite an original position, but you start writing some book about how you're against executive power in favor of congressional power-
Adam Chilton: Hypothetically, yeah, sure.
Will Baude: But before you expect it, suddenly you're against executive power in favor of congressional power, but it's too late to change your theory, and so, you end up inadvertently scrambled.
Adam Chilton: Yeah, I mean, it's interesting. So the members of the public and politicians are 100% comfortable with institutional flip flops, and you're in favor of the filibuster before you're against it, and you're in favor of broad authority for the Supreme Court until you're against it, whatever it may be. It's always surprising to me how many academics also seem to be on board with institutional flip flops in a relatively short amount of time.
Will Baude: Yeah, it's always surprising to me, how few are willing to do it. Maybe because I expect the same baseline, so I'm always impressed whenever anybody is able to hold the line.
Adam Chilton: And not flip flop the second the politics get inconvenient.
Will Baude: Yeah.
Adam Chilton: Right. Yeah, fair.
Will Baude: We'll see you again next week with more originalism. Thanks for listening and don't forget to share, hit subscribe, and review wherever you get your podcasts. Make sure to also check out the other Dissenting Opinions episodes, where I talk with top legal minds about a Supreme Court case they believe is misunderstood. Finally, if you're looking for more current SCOTUS talk, check out Divided Argument, an unscheduled and unpredictable Supreme Court podcast hosted by me and Dan Epps.