In Episode 4 of Deep Dive, Will and Adam review the positive turn and discuss how originalism applies to modern problems such as the administrative state, handgun laws, and the Affordable Care Act.
In Episode 4 of Deep Dive, Will and Adam review the positive turn and discuss how originalism applies to modern problems such as the administrative state, handgun laws, and the Affordable Care Act.
Recorded February 1, 2021
Will Baude: Welcome to the 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 of 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 for our next episode of our deep dive investigation into originalism and positive turn. This seems like an especially appropriate time to remind ourselves of something we keep saying which is that, this is not a debate. So Adam's failure to raise all of everybody's devastating objections to originalism last episode does not forfeit those objections. They're still live. Everybody is welcome to raise them. Adam's was just trying to be game and let our conversation move along so we could spend hours and hours on all the devastating objections the originalism can't meet. I was trying to understand what theory is and how to make our way through.
So what is the positive turn that we talked about last week and what was it supposed to accomplish. So how is it different from the deeply flawed originalism we talked in the first week or have we just put a new label on it and we're just back where we started.
I think there are two differences that are important. One is, we now have a different kind of justification for originalism, a different family for justifications for originalism. The first two kinds of justification we had were these kind of conceptual linguistic arguments. That's just reading. Anybody who knows how to read knows that originalism is a reading. And a more consequentialist argument for originalism, that originalism is good because of its relationship to the super majority process, or because it's a way of constraining judges, or those kids of consequentialist arguments.
And now we have a third argument which is, originalism is part of our law and our legal practice. That gives it a privileged legal status that gives us a privileged place in these debates. Exactly how far that gets us, we can talk about later. But if it's an important third kind of argument, and you can see it's important from some of what was missing in our first kinds of originalism. If it were true that we've been doing something very different from originalism the whole time, and so originalism was calling for a big revolution in how we do legal argument, it has to meet a different burden of proof than if originalism is basically the way we do legal argument right now. And so, it's calling for continuing to do what we do now or doing it in a slightly different way. It's very different burden than if it's a totally new thing.
The other way in which it's different is the kind of originalism that the positive turn can support is a little less radical than some kinds of originalism. The positive turn can support a kind of originalism that has a role for precedent, that has a role for some of the other kinds of well-established legal arguments we've talked about. There's a theory that those are the kinds of legal arguments that with themselves, permissible to foundings so they are part of the original meaning. It's a different kind of originalism than one that says the only thing you can look at is the text and anybody who wants to include any kind of precedent or anything outside the text is not being an originalist. It's a different kind of originalism. Some people complain it's a watered down kind of originalism. I don't think that's right. It has a different kind of justification. That's the goal. That's the supposed accomplishment of the positive turn.
Even if that's all wrong, does that make sense Adam?
Adam Chilton: Yeah. I guess. Here's what I'm curious about though which is, to what extent do originalists, that would be original originalist, agree with move and say that it describes what they're doing? Or do they think actually you're doing something radical and crazy? It feels difficult to understand the scope of the argument and whether or not it's doing something wild and different or not.
Will Baude: Yeah. And of course what's wild to an old originalist might be really exciting, normal, and good to a non-originalist. Obviously I have a biased perspective on this. But I think this is considered a theory within good standing. You'll read people who I've never met and never told they should be original law originalists citing this and saying that's the framework they're using. Not very many people, but they exist. If you read the various accounts of all the different families of originalism, this is included as one possible family, or one possible explanation of how to get there. I think there are very few people who consider themselves originalists who affirmatively reject this. There are few who are kind of much of an exclusive originalist who think the text is the bottom line and things like precedent and any kind of consideration that's not in the text is ill legit. There are few of them. They are a minority within originalism. But they do exist as a intra-originalism.
Adam Chilton: Got it. Okay. Just within this, there's something kind of weird to be making arguments about originalism and what the correct version of originalism should be that don't feel themselves very originalist. And what I mean by this is, you have people that are saying this is what we think this is how to do it, and the reason that we have to do it this way is because of a specific set of facts. And then to come along and say, actually, let's update the way that we think about this and change this movement, and adapt it to these various critiques and arguments. Doesn't it seem weird to you that what you're engaging in really feels a lot like addressing to arguments, adapting, moving forward, finding ways to engage in legal argument to get to this new positive turn?
Will Baude: I mean, it feels a little weird but not that weird. One is, there are different levels of methodology versus substance. I think we mentioned this briefly but sometimes you're trying to discover an old fact about the world, or a scientific facts that's really hard to discover but has been there for a really long time, like the origins of the universe. And our theory is for how to discover it, how to best access it, for us to evolve. We have only imperfect ability to figure out what's going on, what's the best way to think about it is. It's a little weird but I don't think it's ultimately a problem if our theories of observation or history, or whatever, change. Even though the thing we're studying hasn't ever changed.
But more fundamentally, here's my overall picture... Here's my view of how originalism has worked since the founding. The kind of originals that I'm describing, original law, originalism, was the law at the founding and it didn't really need a special name. Because at the time, it was just called law. It was original law but it was just called law. They didn't need another name for it. Real fights are between people doing law and people not doing law, or about exactly what was entailed by that law. Only after we invent a robust non-originalism do we start needing new labels. So only after the 20th century we get a over, well developed academically supported living constitutionalist movement that has some takers in the judiciary. Then people start criticizing that and they need a label for the thing they believe in instead. Originalism becomes that label.
And at first, when the critics of the new living constitutionalism, over claim it a bunch of ways because they're very reactive. And then overtime, we've kind of rediscovered and refined what that original law was like before we lost sight of it after we started creating all these other laws. You don't know the name for it until you've got other stuff going around.
Adam Chilton: Think about it this way for a second. If it's possible for people like you to rediscover what the law of the originalism is and say, actually, we can do this better or differently, or something else, shouldn't that tell you that maybe this idea that we could answer what the law was at the founding at some comprehensive definitive way, we should just be skeptical in general? The first 30 years of originalists couldn't figure out what originalism is. And I'm supposed to defer to them on the second amendment. Feels weird right?
Will Baude: You couldn't be that differential. The ultimate message of originalism is really one about falsifiability's. Ultimate message is, that claims what the law is, are supposed to be grounded in evidence and can be falsified by evidence based on various historical facts. So you shouldn't take anybody's word for it about what the second amendment or anything else means. Some people are right about it and some people are wrong about it. I do worry that, since that's a thing people often want from the law, is a definitive answer that's going to be true forever, that people are going to be disappointed. It's in theory, possible, if you're an originalist that we can discover new evidence that Justice Scalia didn't see when he wrote some opinion. Or even, old evidence that Justice Scalia didn't see when he wrote some opinion that shows that he's wrong. And the fact the opinion is written by Justice Scalia doesn't make it impervious even if you're an originalist.
Adam Chilton: Okay. All right. It seems like when you've got disagreements about the meta debate, about the possibility that we could be getting that wrong, it illustrates the possibility we could be getting the individual debates wrong. And if so, perhaps we should be more skeptical about the reliability about these methods. And in the first episode, and the first time we talked about this, a lot of the arguments for originalism were instrumental. And so, it really cuts out these instrumental claims about predictability, whatever.
Will Baude: Yeah. That's right. I worry about this. I think the different kinds of debates, each have different kinds of disputes and unreliability. I think you could keep running this. The same reason we should be skeptical about our own ethical theories about what's right and wrong. Those are subject to methodological debate. In a hundred years, everybody will think that those of us that ate meat today are morally horrific human beings or not. There's something else we haven't thought. If you're really rigorous with that, you can follow it all the way down. We shouldn't be too sure that leaks to the world aren't brains at assimilation. I think that's actually all true.
Adam Chilton: Yeah. I agree. But other theories are better at accounting for the facts that we change our views overtime and that is that we can be fallible in correcting that. That's just baked into the way we think about what the law requires or what constitutional interpretation requires. A theory that says it is fixed but then when that theory itself evolves, it's weird.
Will Baude: I'm with you, it's weird. This would actually be an interesting direction to go is, all theories, they can't fix the fact that we're all fallible. They just have different ways of responding to it. Some theories just get a lot more discretion of the judge and say the judge can just decide because the truth changes over time, we're just going to let the judge decide. Those are vulnerable to the possibility that the judge will be wrong. But some forms of living constitutionalists are just like, give more power to the judge and say, judge will update. What's the best way to update to respond to our updating views in the world? Just seems like a hard question to me. I don't know if there's an easy way out of this.
Adam Chilton: Yeah. I'm not sure I have an answer to that either.
Will Baude: That said, so far this has been all very abstract. I know how much you hate abstraction.
Adam Chilton: That's right. Let's get to understanding what this actually all means. How did this shake out?
Will Baude: Okay. This too, all the usual disclaimers that... I actually hate talking about applications in these kinds of debates because the answer is, other people are going to have to do research, more research than I've done, to figure out whether everything I say is right or wrong. I spent a lot of time trying to keep up on these things. I normally do my own research. It could be that my view of what the original meaning of the second amendment is, is wrong, and I'll be convinced that I'm wrong by reading some research that hasn't been done yet. That's actually happened on some of these topics we're going to talk about. But anyway.
We started doing this last time, do you want to start with the administrative state, and whether or not originalism is going to destroy the administrative state?
Adam Chilton: Yes, definitely. I think that's a good place to start.
Will Baude: As I understand it, there are two ways originalism might destroy the administrative state. And honestly, two things that originalists sometimes are excited about in the hope that it will destroy the administrative state. One is, does originalism have a more limited view of congress' enumerated power, the federal government as a whole, just has less power over some stuff the administrative state currently regulates. And this is, what is the scope of the commerce clause, and does the commerce clause let congress regulate everything, or only regulate steamboats going between from one state to another.
One thing that might destroy the administrative state is the Nondelegation Doctrine, if maybe we're not supposed to have delegations of powers to administrative agencies. Does that seem right? Are those the risks?
Adam Chilton: Yeah. I think that's right. Arguments about what Chevron is, or does not require and how reviews should take place different within this? I feel like there's also a set of threats there, or a set of arguments at least.
Will Baude: Yeah. Okay. Maybe the second should be all the separation of powers issues. First, we have the federalism issues. I think every originalist agrees that the original understanding of congress' enumerated powers is less than what we currently think they are, that we've gone too far for federal power. I think there is a real split. Not necessarily a split over the evidence, but a split over how to interpret the evidence, whether we've gone a little bit too far or a lot too far. I think there are originalists who think the original meaning of congress' enumerated powers would largely require stuff to be somewhat interstate and not let regulate a person in Chicago who sells me something in Chicago.
Let's say these camps are evenly split who think, no, congress could regulate pretty much all kinds of sale or parts of the national economic market. It's just they can't regulate stuff that really has nothing to do with interstate commerce like growing marijuana in your back yard, and smoking it yourself.
Adam Chilton: Got it. Okay. I was just going to ask you for an example of what the latter thing is. The people that think the weakest version that we've gone too far, what do they think it is the federal government actually is concretely doing that's still problematic?
Will Baude: Regulating wholly instate activities that have no real connection to something outside the state. Or, regulating things where ... Maybe that's the easiest category. Or, slightly from what I think about it where, clearly the point of regulating the activity has nothing to do with national markets, or national economics, it's just a pretext, so especially it comes up in a lot of federal criminal prosecutions. Where technically, when you prosecute somebody for illegally owning a handgun, technically it's an interstate commerce prosecution because at trial, an expert witness will testify that the gun was made in Connecticut and you're not in Connecticut anymore. Therefore, the gun must have traveled interstate sometime, and that's the constitutional hook. That's an example of, it's not really the commerce power that congress is relying on, it's using commerce as a pretext. Those are the kinds of things that most originalists worry about.
Adam Chilton: Yeah. Got it. Those ones do seem like a bit of a stretch, or at least could be a stretch. Federalization of criminal law is problematic, both in that, criminal law is the subject that was pretty clearly state law overwhelmingly. And so, to try to move a lot of crimes into federal law, in a way can state law does seem like a shift. It does often seem like a bit of a stretch on the commerce clause grounds that we're saying, these activities have some interstate connection not because the actual specific person crossed state lines with a gun with the intent to commit a crime but just because the gun at some point must have cross the state line. I'm with you on that but that seems like a stretch.
Will Baude: There are administrators agency for which this is a big deal. I think there are agencies that regulate just about everything. There are some, the Alcohol, Tobacco, Firearms agency would care about a lot of this kind of thing. My census, at this point, that's not the big thing that people worry about when we're talking about the consequences of the administrative state, would have some interesting consequences but it's probably not a .... Unless you have the more radical view, it's probably not like a blockbuster problem.
Adam Chilton: Yeah. Okay. Here's one question, to what extent do we think that the event of the last year exposed the weakness of some of the crying wolf about federalism over taking all aspects of states? Here's what I have in mine. In the last year, during the coronavirus pandemic, there are a number of things that would have been helpful if the federal government could have just stepped in and said, we're doing this, we're doing that, etc. Now, part of the reason that didn't happen is it seemed like the Trump administration had no interest in actually doing their job. But another part is that there were legitimate arguments that shutting down bars and restaurants through any kind of federal decree is potentially constitutionally problematic. And that it's pretty clear within the rights of individual states or local jurisdictions within their regular police power. But once you get to the federal level, then we have to make these indirect commerce clause arguments that are less clear.
And even just shutting down interstate travel, or whatever it may be, the states were kind of powerless. You had states that didn't want New Yorkers driving to Florida. That fee was maybe there's not always great ways to handle some of these things. The point being, in a situation where we have an unprecedented crisis, on all sides, there were concerned about what the limit of what federal governments power should be. And it wasn't the case that you had very many people just saying, constitution be dammed, federal government can do everything and anything and we don't even have to think about this. Is that just because conservatives had power or is that because, at bottom, people weren't actually willing to nationalize the whole country?
Will Baude: Couple things. There was also separation of power issues going on in there. Congress passed some major legislation which mostly spend money but did actually adopt various regulatory changes for workplaces and sick leave and stuff like that for COVID in the Cares Act. You heard very little complaints about that. It's hard to disentangle for the past year, the questions about what can the federal government do and what can the president do without congress? Because congress largely wasn't acting and wasn't being pushed to act so we were asking both those questions about the administration.
I think the bigger point is that, the past year shows how suboptimal federalism is. Clearly, it's optimal to have ae competent well-motivated person in charge, and just have them do the right thing for everybody. That's clearly much better than trying to rely on a patchwork of people trying to coordinate, etc. But it also shows we don't live in the optimal world, as long as we don't have the competent well-motivated person in charge of everything. The purpose of federalism is sort of a risk management strategy that there may well be incompetent or ill-motivated people in charge and we need to preserve somebody else who can still get stuff done when that's happening. I don't think that tells us a lot about whether the risk is worth it.
This is a very bad thing that can happen. This is part of why we have federalism. Maybe if we didn't have it we would get only competent, well-motivated people in charge. I don't know.
Adam Chilton: All right. So let me ask the second part of this then which is, at least in what's made it into the major public debate, the issues don't seem to be about whether or not we should change the way we prosecute handgun crimes as in federal court, instead of state court. The issue on which this federalism overreach claims seems to be the most prominent, is probably the Obamacare debates and the constant debates over Obamacare.
Now, here's what's tricky for me on this. One, that doesn't seem like the biggest stretch of the commerce clause in that healthcare is a market that it has many deeply linked across states and impacts the national economy overall, what the different choices that states makes about their structured insurance markets. One, it doesn't seem ... One of the close calls like the handgun rules. But two, beyond that, it seems to work reasonable well and the Affordable Care Act is one thing that held up okay in 2020. I think, at least, that's the current view on it. Why all the anger spent focused on Obamacare instead of how messed up this federal criminal law stuff is?
Will Baude: Yeah. We live in a weird place. On think on the merits, the challenge to the Affordable Care Act is one that sort of splits those originalist camps. I think you have to be in the narrower view of congress' power to be worried about things like the insurance mandate. And if you have the broader view, it's easier to tell a story for why's constitutional. I think that's thing one.
As a sort of doctrinal accident, because of the use of the words economic activity in the supreme court's own commerce clause cases, there was a doctrinal path to challenging the Affordable Care Act that was easier than a lot of things because you could claim you didn't need to return a precedent. Which was sort of an accident but then sort of made the case more right for litigation in a weird way.
Third, for reasons I do not understand, with the litigation and statute generally became super polarized. There was strong pressure on conservatives who thought the Affordable Care Act was just fine, or thought it was constitutional but not great. Not to talk about it a lot, sort of stay out of it. And like a weird effect if you did then become the one conservative to speak up about it, you would quickly become the go-to person, even if that wasn't really something you specialized in and didn't want to know a lot about. There's a really weird cultural polarization around it that I don't understand.
Adam Chilton: Yeah. I think that's almost everyone's view that, the Obama administration decides to go with Mitt Romney Massachusetts approach to reforming the healthcare markets because they thought that was where there would be the most broad-based support and buy in from conservatives if this is a conservative idea. And the second Obama goes for it, it's tag as clearly unacceptable. This, I guess, we're also to a breaking point where we're making it so much about the debates, about originalism generally are then wrapped up in these political debates that, they confuse me to whether or not it's about the method or it's about the substance, or it's about the topic, or whatever. Are people that are originalists committed to these views on the ACA or on these other topics? It does seem like a pretty close Venn diagram but what you're trying to say is that there is no methodological reason that it's necessarily true.
Will Baude: Yeah. Right. And then a lot of the closeness of the Venn diagram has more to do with various cultural factors about how are elites polarized and relationship between law and politics that are hopefully short term.
Adam Chilton: Got it. Okay. Let me say this then, does positive law originalism and original originalism say anything different about these topics?
Will Baude: I don't think so. Let's say this, it doesn't say anything differently about the Affordable Care Act, the federalism fight specifically because that was already a sort of weird mélange of where you were un-doctrined versus broad and narrowing of the commerce clause, etc. Yeah. Actually, I don't think that says anything that interesting about it either way.
Adam Chilton: Got it. Okay. What about the Nondelegation Doctrine?
Will Baude: Okay. Here, I do think there's a bigger thing for the administrative state people to worry about which is the central fiction on which the administrative state rests is that it's okay to pass incredibly open-ended statutes that say things like, this administrative agency shall do things in the public interest. And that's not delegating a legislative power. That's the legal fiction. It's really just executive power because it's a really broad statute and the executive branch is just allowed to do whatever it wants to because it's in the public interest. This is like the legal fiction on which all these statutes have been upheld since the new deal. If that weren't true, congress would have to write much more specific legislation for the administrative agencies or else we wouldn't be able to do it.
And here, I think there is a consensus... There's a consensus among originalists that the modern delegate Nondelegation Doctrine did not exist at the founding and cannot be supported as an understanding of legislature power or executive power. There is a recent raft of very good historical scholarship trying to show this is wrong that actually there were lots of loss of delegations of power at the founding. A piece by Nick Porillo at EAL, and a piece by Julia Mortens and Nick Bagley at Michigan, with the theory and tons and tons of counter examples that they say shows that there really is no originalists based Nondelegation Doctrine. There's currently a ripple in the literature about this with some of the people trying to show them they're wrong, some people saying, maybe they're right, maybe the doctrine needs to be rethought.
Adam Chilton: Okay. So I think this raft of new nondelegation stuff of the scholarships attacking the originalists makes originalists look really bad. And here's why, the basis for the originalist claim that seems to have become extremely popular over the last 20 years that the Nondelegation Doctrine and therefore, all of the administrative state is problematic based on a few things. One is, it does seem to be the originalists are making up a radical change and they're proposing a radical change but the evidence that they require to propose this radical change is not that closely tied to original constitutional sources. Which is to say, for instance... I'm only relying on, I should say, on secondary readings of these sources. But the Phillip Hamburger book on this, or the [inaudible 00:26:33] articles, etc, that claim at least from others, they relied a lot on Loche and various thinkers and not a lot on what was actually discussed in Philadelphia.
If true, that they're relying on saying, this Nondelegation Doctrine is problematic because these other people in the 1700s and 1600s thought it was problematic but not actually linking it to the source that they said we should be linking to, it seems problematic to me that they themselves wouldn't have gone to whatever the source is that people in their separate methodological arguments have been saying the sources we should care about. And it's that everyone can be moved so quickly without every actually seeing the receipts.
Will Baude: So I don't think it's as bad as it looks. Part of the issue is, especially with things like the separation of powers, the constitution uses these phrases like the legislative power, the executive power, and the judicial power without defining them. And when you do go to the debates at the Drafting and Ratification Convention, there's a lot there referenced back to other stuff. There's a lot of people trying to understand the meanings of the legislative power, executive power, and judicial power by reference to some combination of what the states meant by those things under the state governments that already exist at the time and what the British understanding was. Because everybody understood correctly that we were borrowing our government structure from some combination of England and the colonies.
There's sort of a broad agreement that those are the right sources to look at. I don't think anybody is doing anything funny by looking at Loche and looking at all this pre-ratification background. But because there are so many different sources, it is vulnerable to non-systematic readings or what to do when there's a confine of different sources. That's part of why there's such a huge literature on it. The people who are good at this are careful not to over claim and correctly analyze what they're looking at but lots of people are bad at it.
Adam Chilton: Yes, a lot of people are bad at it. The extent to which lots of people are bad at it I think really undercuts one, all of these instrumental arguments for why we should be originalists. And if it turns out originalists is hard. But some of the people that seem to have been bad at it and fast and loose with it, aren't just random crank scholars that call themselves originalists. But even at the supreme court, perhaps some of the opinions written by Thomas and Gorsuch were also pretty fast and loose with saying, hey, guys, I found a new article, maybe let's rethink the entire administrative state without requiring really strong evidence to update your priors about the way we run our entire country.
Will Baude: I love this hierarchy where we expect the most from supreme court justices who are not particularly trained in this methodology and then less from original scholars that do this regularly. I guess I feel the opposite way. I guess I think this is right, it's hard and lots of original scholars had not totally gotten it right. I think part of the question is, do you judge this as a field? Instead of look at the pieces collectively and overtime and see them as building towards knowledge. When there's a critique that may show a bunch of people were wrong about something, successfully incorporating that or do you view it as spinning off into madness? I see this debate as actually building towards knowledge.
Adam Chilton: Yeah. Maybe. What's even the basis at this point of the originalists, whatever the current originalists' fallback is after all the recent roundabout been since there was a lot of delegation at the founding? Just the most basic level we had a Post Office and department of war and some other stuff from the jump that a lot of power was delegated to them to come up with various policies and regulations and things that look, not the same, but at least a proto-administrative state that's, again, different but that had delegated authority to it.
Will Baude: Yeah. There is a theoretical basis. This is where the Loche and all that stuff come in. In that there were widely read sources that were in turn widely cited during the ratification debates that would say things about how the nature of the separation of powers was that each branch is assigned its own power and isn't allowed to give it up to the other branches. There's a theory.
And then there are concrete examples at, or near, the founding of people articulating something like this. The most famous of which is the Post Office. When the Post Office set up, one of the congress' jobs was to figure out where the roads will go, post roads. There's a big debate in congress about whether or not congress has to specify the route of the road or whether it's enough for them to just say what the start point and the end point of the road is. James Madison, among other people, stand up in congress and say, oh, on constitutional nondelegation grounds that they have to spell out where the roads go and that's what they did. There are other examples during other statutes. There are individual examples of that.
Adam Chilton: Let me guess. So not even knowing the endgame to this my guess is that James Madison did not win this argument because that seems like deeply impractical even in 1791 to have congress figure out the route.
Will Baude: He did. He won.
Adam Chilton: No way. Come on. Congress actually had to be like, oh, we got to go around this tree and over that stream?
Will Baude: No. Not trees and streams. But it lays out the 21 towns along the way they have to hit. Now, it's true, in between the 21 towns that James Madison names, they don't say exactly where they're going to go in between there. This is part of the debate about exactly how much we get out of that. But the house seems to agree that they've got to list the 21 towns that you go to get from here to there, not just A and B.
And then there's just the overall pattern of what statutes congress enacts. And this is where a huge amount of the debate is. Clearly they do have statutes that delegate a lot of power to the administrative state. The current strongest hypothesis though is that almost none of those statutes affect individual rights over life, liberty, or property. There's a broad congressional power over the intel operations of government, government rights, public benefits, but not over the things that traditionally are governed by due process and individualized consideration, and bunch of other norms, life, liberty, and property. And so, there may be a Nondelegation Doctrine that's more focused on saying, the SEC can't unilaterally decide that you've committed a securities fraud and hold you liable, or something like that, for it. But still saying there's very broad power for the Social Security Administration or something like that. That's the current hypothesis looking at the sweep of statutes but I don't think it's [inaudible 00:33:25].
Adam Chilton: Got it. So let me ask you one thing, the thing that always feels weirdest to me on originalist grounds isn't just the, hey, department of interior, you go figure out how we're going to use our vast federal lands, it's the really big shifts in the way that things are done legally because of political realities. Here's the things that I have in mind on this are going to be more foreign relation examples. For instance, constitution is clear that congress has the power to regulate the imposition of duties on imports and exports. And then also, that there is the treaty power that treaties need to be signed by two thirds of the senate. No trade agreements are done through treaties. They are all through congressional executive agreements passed through fast track. Because it's just totally impossible to get anything done through a treaty. So everyone's even given up on these ideas and they're done through majority votes, both to senate and the house even though that doesn't seem to be what the founding would have had in mind at all.
You also seen a big rise of sole executive agreements where the executive branch is signing what is basically treaties with foreign governments all the time without going and getting two thirds of the senate to approve of this. These things, to me, seem like you could make arguments that they're inconsistent with the original understanding of the mechanism you should use. And so that seems what's problematic there is, it's not that the extent of what you can tell the interior department to go do, it's that the constitution had a mechanism for some of these kinds of arrangements and we've decided the constitutionally prescribed mechanism to handle these things isn't one that works very well so we've just moved around it.
Now, when these things are challenged in court, roughly speaking, the courts have said political question if this is the way congress wants to handle these things, who are we to say that it needs to be a treaty and not a congressional executive agreement of something. Courts have just stayed out of this stuff. This to me seems much more problematic on originalist grounds than just these other examples of delegation.
Will Baude: That might be right. Maybe that the administrative state is safe but foreign affairs doctrine is really in trouble. I don't think congressional executive agreements are a problem. That's a good example of the constitutional assumptions problem we talked about a long time ago. I think the assumption was that a treaty would be easier than a law so you were streamlining international law by letting it go through the treaty process and skip the house and just get two thirds of the senate rather than the majority of the senate. Because they did not understand that scope of partisanship that was going to afflict the legislature. They figured, well, you're getting the high host involved. That's going to be really slow because it's full of popularly elected yahoos.
Adam Chilton: That's interesting. So you're thinking at the time... Especially since we didn't have direct popular election of senators at this point, that everyone just assumed us senators will understand the importance of dealing with France and will get our act together unlike getting all the majority of all these crazy congress people to agree on anything.
Will Baude: Yeah. That's why the senate has the role of appointments, the treaty ... They even called it the executive calendar. The thought was like, there's few enough senators and they're more like the executive branch, they'll be a useful check but they're not going to be that big of a problem. They didn't know that we were going to perennially have... That no party was ever going to have two thirds of the senate and everything we cared about was going to be partisan. The treaty power was going to be broken. That strikes me as okay innovation.
Some of the solo executive agreements are weirder. Some of them do seem like they should be treaties.
Adam Chilton: Yes. It seems like we've gone pretty far on this to just to agree to the fact that we don't have to pass treaties anymore to make these commitments.
Will Baude: Yeah. That seems right.
Adam Chilton: One final thing. On the entire administrative state stuff, it really does always have the feel that originalists knew the answer in 1980. They wanted a smaller government for a variety of reasons, that they wanted to push back to have more states rights and fewer federal powers. And problematically, they were deciding at the time and that the conservative legal movement was taking force with the Reagan revolution. Where Reagan saying, states rights, states rights, in part is part of a southern strategy to push back civil rights. Conservative legal scholars are like, and that are part of this movement, are onboard with saying that in saying that originalism requires it. And now here we are 40 years later trying to figure out what the actual answer is to whether or not you're allowed to do some of these things or not.
In other words, this feels really policy-motivated and then, ex post people later that weren't part of the original debates trying to figure out the justifications. Doesn't that give you pause? We're filling in the footnotes on a political strategy that was basically trying to flip southern white voters.
Will Baude: I'm not sure I totally agree with the story. Antonin Scalia was a pronationalist academic and wrote essays about how the federalist society should remember that federalism means there's a strong national government during the Reagan administration. Complicated. One of the things I worry about a lot is that originalism will be the victim of its own success. That unlike other, there is a constitution interpretation. It seems to have some political backing. And I worry a lot that that is going to confuse or corrupt those who practice it. That may be the most important thing for people who like originalism to worry about and try to fix.
Adam Chilton: Yeah.
Will Baude: It's like what happened to cost benefit analysis.
Adam Chilton: Yeah. Fair. Right. Sure. Good example. You think that you have some sort of set of neutral principles for us to make arguments and then people think, yeah, we can use this to get where we need to go in our arguments.
Will Baude: And then you have to choose, whether that means you should just abandon the whole thing, maybe you should, or whether that means you should keep trying to do it and find ways to police the bad versions of it out. That's a hard question.
Adam Chilton: Yep. All right. Let's talk about guns.
Will Baude: Okay. Good. We haven't done anything politically controversial yet. There are supreme court cases saying, there's a right to keep and bear arms. They seem right to me.
Adam Chilton: But that states can't ... Not that there is a federal gun control laws maybe unconstitutional but that state gun control limits may be unconstitutional depending on the scope of them. How do we get to the second thing?
Will Baude: Good. I'll say any-
Adam Chilton: Well, actually. Maybe we should back up. Can you just explain what Heller is and the importance of it within originalism?
Will Baude: Heller is a supreme court decision from 2008 where a 5/4 majority of the supreme court interpreted the second amendment of the constitution for the first time in like 70 years and concluded they should apply its original meaning. And they concluded that its original meaning created an individual right to keep and bear arms for self-defense purposes even though the second amendment has a reference to the militia, and even though there is some historical evidence that one of the main purposes of the second amendment was to preserve some kind of collective militia right. It's an originalist milestone. It was consistent with a near-consensus of originalist and historical scholarship. Not completely, there were some historians on the other side. There was a bipartisan consensus among legal scholars who cared about history that there was a mutual right. But it also probably makes a lot of historical errors being a law written by a non-historian by the name of Justice Scalia.
And then, some number of years later, five-ish, the supreme court also extends that right to the states since the second amendment right to keep and bear arms is also incorporated against the states. The court lost almost no decisions about actually what that applies to. The two statutes that dealt with in Heller and McDonald were basically total bans on carrying handguns, or possessing handguns at home, so not even carrying. The supreme court hasn't decided whether the second amendment extends outside the home at all, and to what kind of regulations it extends. But it's created a foot in the door which has created, of course, a huge amount of litigation.
Adam Chilton: Right. Okay. Question on this, do we have much understanding of whether or not there was anything that looked... When's the first time that we saw anything that looked like gun control at the state level, or low local, or any level? Does this just not exist period at the founding?
Will Baude: At the founding, there are a few rules about the keeping of guns in cities largely for fire risks that Justice Briar cites a lot of. But during the 19th century is when states evolved and enacted [inaudible 00:41:56] laws. There are some that are upheld in the period between the foundings of the wars, a bunch in the period after the Civil War. I gather there are lots of regional differences here that the south, and the west, and the north kind of have different approaches to these things. But over the course of the 19th century is when there was a huge amount of this.
There wasn't nothing. England had a rule forbidding Catholics from keeping and bearing arms. That was regard [inaudible 00:42:23]. How to think about that example is a big part of the discussion in the cases too.
Adam Chilton: Got it. But it is the case that over the course of the 19th century, and into the 20th century, and certainly by the end of the 20th century, you have a wide range of state and local laws that regulate the controlling of guns. And these did not just pop up in 2008 and 2013. And the argument though is that this entire idea that states could regulate guns within their borders, that actually states basically don't have a right to do that and it's just a misunderstanding of what the second amendment said as of the ratification.
Will Baude: No. I think it's the opposite. At the moment anyway, the polar... Because the question is, do states have plenary rights to do whatever they want? Or are there some constitutional limits on what they can do? States have lots and lots of laws regulating speech and everybody agrees that they can have lots and lots of laws regulating speech but the first amendment imposes limits on what they can do and then we have a lot of litigation with what the limits are. The question is, is the second amendment entitled to nothing, protection but less protection than speech, or as much protection as speech. I don't think anybody claims guns have more protection than speech.
Adam Chilton: And nobody claims what?
Will Baude: That guns are entitled to more protection than speech. Nobody would say that it's a topic that states can't regulate at all. Now, maybe they'll get there. But in terms of ... I don't know anybody who has that view.
Adam Chilton: The position is to still think there is still room for regulation. For instance, states can say you can't sell rocket launchers or grenades, or what-
Will Baude: Yeah. And the nature of ... So probably you could say 18-year-olds, you have to be an adult to have a gun. Maybe they can sort of require sales to be tracked in some way so you can't carry guns inside of courthouses. Exactly how far we go is of course part of the debate.
Adam Chilton: Got it. Right. The supreme court, when deciding this... I assume you can't take a gun into the supreme court?
Will Baude: Take a gun into the supreme court, that's right.
Adam Chilton: Even though federal property, whatever, they're okay limiting the right to bear arms there?
Will Baude: Yes. I think they specifically say in Heller, while I'm reading this, that one of the kinds of regulations that's always been understood to be okay is regulation on sensitive places. There are sensitive places where you can't take a gun. Court room would be an example.
You also can't stand up in the middle of the supreme court arguments and shout that it was wrong. They'll haul you away if you do that. So again, potentially analogous to speech.
Adam Chilton: Right. That seems obvious and reasonable to me. But it just seems like from the jump we can say that the idea that there needs to be some amount of regulation should be okay and should be acceptable except we seem to have conservative members of congress right now freaking out at the idea that they can't carry guns into the capital.
Will Baude: Obviously the second amendment is another place, even more so maybe then, the Affordable Care Act where there's both a constitutional legal theory and a political movement, that on the one hand has some obvious symbiosis but on the other hand actually aren't the same, or they shouldn't be the same. And maybe there is a risk that they'll get mixed up with one another. The state of constitutional law and scholarship on the second amendment is way more limited than the state of politics and the second amendment.
I'm told that this also means that the NRA actually opposed the initial litigation of Heller, that they tried to stop litigation and get it destroyed for lack of standing. They're view was, things are working just fine now, we have a strong political movement organized against protect gun rights. And bringing in the law just might mess it up so we'd rather just keep that stuff out of here.
Adam Chilton: How should I think about the difference between the first amendment and the second amendment in the way that it plays out in political discourse? Here's what I have in mind. The first amendment feels like this textual limit on what the government can't do, is narrow. Congress shall not pass a law that says X, Y, and Z. Okay. But what the conservative movement wants that to mean is like, no one involved in government can ever say anything to stop you. And in fact, even private companies, if they silence you, they must be breaking the first amendment too.
On the other hand, on the second amendment that has a clear limiting principle written into it... Maybe not a clear limiting principle but has language that implies there may be purpose or something. I don't need to call it a limiting principal but it has the, in order to establish a militia language. And there, it's that the government can't do anything.
Will Baude: Wait, this seems similar. You're saying both cases, the rights in their text are more limited and then conservatives have become the champions of individual rights and want to read the rights more broadly.
Adam Chilton: I guess that's right. It's actually the same thing. Nevermind. I don't know why I was thinking ... Totally confused there for a second on what I'm saying. No. That's right. In both cases, there's language that seems to limit it. We're simultaneously being told because of the constitution, that's means actually that it's masked extremely expansive.
Will Baude: I'm not sure if that was a real question or an argumentative point but here's the-
Adam Chilton: Yeah, sure. Fair.
Will Baude: Here's the real answer. Including a right in the text of the constitution makes it a really valuable political focal point. So that if you're trying to organize some kind of political cause, being able to point yourself to the political focal point is really helpful. People do that all the time. Obviously some of those claims are good and some are bad, and some are consistent with the original meaning, and some aren't. But that's just a really popular strategy. And ironically, it's a strategy that James Madison anticipated and said was one of the reasons we should write the Bill of Rights so we can create these focal points for people to care about.
I think both the second amendment and free speech are hard because they were well-developed traditions of both the right to keep and bear arms and the right to free speech before the constitution was written. And a big part of the interpretive question is, how much the rights are supposed to incorporate those traditions and how much we're supposed to change those traditions? How much was this them saying, yeah, the way you can speak in England, that's basically what we're talking about. And how much of these rights were them saying, we want to make sure that stuff in England never happens again. That's a question you have to read all the debates through. In a way, you got so much material that there are a bunch of moves and countermoves to work with. That's what makes interpreting those two rights hard.
Adam Chilton: Yeah. I guess that's right. It is interesting. Let's say we take the Heller and the McDonald approach and say, the second amendment creates an individual right. That doesn't mean that there aren't things, however, that states can do to regulate guns. So now we've got to figure out what the content of that right is. How are they going to figure out the answer to that?
Will Baude: Yeah. This is not an area where there's a consensus. This is one of the areas I think is really hard. One approach seems to be what Heller proposes, is to look for discrete historical examples of regulation that were considered okay at the founding, and then permit those and analogies to those. That's the court's current approach to free speech. They say, okay, what kind of speech is unprotected. It's a list, obscenity, incitement, and it's just a list of historical unread categories. And the current approach is to do the same things to guns and say it's possession by bad people, possession in dangerous places, possession of certain kinds of overly fierce weapons. And then we fight about being in some of those categories are.
This is not a very originalist way to figure out the scope of those rights. That kind of categorical approach is not how the rights were interpreted at the founding. It was done through much more of a balancing test and with much more deference to the legislatures choices about public good.
Adam Chilton: Yeah. It also just seems systematically biased. Which is to say, let's say the founding had any number of laws they could have passed for whatever set of reasons... I'm sorry. Not the founding could have passed but at the founding that legislatures could have passed a wide range of laws. And for whatever set of reason, they only chose to pass laws A, B, and C, for policy reasons, for balancing reasons. Not because they thought this was the full extent to what we're allowed to regulate and we want to regulate to the maximum extent. But then, 200 years later we're told, whatever choice they made then, that's the limit of what you can do and you can only have that set of rights.
It creates, obviously, systematic downward pressure to allow for less regulation. Maybe it's never over inclusive but it can be radically under inclusive for what you may have been allowed to do at the founding if you had wanted to.
Will Baude: Yeah. I think this may actually be another place where the positive turn really matters. If your main goal for originalism is to constrain judicial discretion, then this approach, while a little arbitrary, and a little over inclusive, has a lot going for it. Because, the court can say, look, we're not in charge of free speech, we can't make any decisions about free speech. All we can do is look and see if it's a fit in one of these boxes or if you found a new historical box that anybody missed before. It's almost validly why the court does it.
Under the positive law approach, it's more clear you've got to look, not just for the accident of what happened, but some sense of what was the legal principle back then that allowed these kinds of exceptions. We do have more evidence about this. People are trying to figure this out. If the legal principle was, you can regulate certain forms of speech that have really broad negative actualities on other people's rights, or you can regulate the right to keep and bear arms. Whatever it was, then we actually got a legal principle we can work with that doesn't just lock us into some sort of under inclusive nonsensical thing.
Adam Chilton: Yeah. The latter approach to this positive law originalism approach does seem better to me in that it doesn't lock us into just this historical accident with these examples that exist. But all forms of originalists still have this feel to me that we just sort of go feel around for what people happened to have published or happened to have passed and then really feel constrained by that instead of moving to just some broad understanding of what was or wasn't allowed, or what the constitution did or didn't mean.
Will Baude: Yeah. There is a role of happenstance. This is sort of true to the text of the constitution itself though. They enumerated some rights in the constitution. It's kind of a matter of happenstance which rights they enumerated is based on which rights, they at the time, were particularly worried the national government might infringe. Neither of them of the rights are most important, just the ones that were like, they were worried would be on the table. And now in our modern constitutional litigation, it's shaped by the fact they included religion but didn't include ... And so, then the two responses in constitutional law are to either decide the text of the constitution doesn't really matter and we should do something kind of sensible free of it, or admit that you're stuck with this kind of happenstance and then figure out what you have to do with it.
Adam Chilton: Yeah. I guess so.
Will Baude: Maybe it would be better to just say we don't care about the text of the constitution anymore, that it's a matter of happenstance and larger and nonresponsive to our current concerns, and we have sufficient confidence in the wisdom on the supreme court to just figure this stuff out. That we prefer them not to worry about that stuff.
Adam Chilton: Yeah. I don't know. It seems like we have a perfectly sensible, manageable alternative to these two poles that you're laying out though. Which is to say, here's the text of the constitution over 230 years now, we're going to make doctrine and interpretive principles and that those all carry weight. And that it's not the case ... Just in area after area go back through and say, wait a second, this 200 years of doctrine was created over 200 years. Which just feels like the originalist moving everything is to write articles pointing out that at some point things were invented doctrinally.
Will Baude: I think that's right.
Adam Chilton: Of course they were.
Will Baude: Right. I think that's right. I do think that a lot hinges on how much weight. In practice, that sounds very reasonable until they all get weight and then in practice you either have to give enough weight to things like the original meaning of the text of the constitution that they sometimes do work. In which case, we're back at the paradox we started with. Or, little enough weight that they almost never do work, in which case you're mostly giving them weight for symbolic values so you can pretend you don't know the constitution. It doesn't really solve the problem of how much to care about the constitution.
Adam Chilton: Yeah. Fair enough. All right. Should we end it there?
Will Baude: Should we wrap it? All right. What a down note.
Adam Chilton: Right. All right. Thanks for coming.
Will Baude: 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, and unscheduled and unpredictable supreme court podcast hosted by me and Dan Epps.