In Episode 2 of Deep Dive, Will and Adam discuss some counterarguments to originalism, both descriptive and normative. They also discuss federalism, judicial choice, and well... there is just too much to sum it all up.
In Episode 2 of Deep Dive, Will and Adam discuss some counterarguments to originalism, both descriptive and normative. They also discuss federalism, judicial choice, and well... there is just too much to sum it all up.
Recorded January 14, 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 over our winter quarter over Zoom in front of a quote unquote live audience of students. 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.
Last episode we talked about arguments for originalism, at least bringing us up to 2013 before we get into the positive turn. Now you're going to tell me about arguments, all the reasons to reject originalism. I think in the same spirit as last time, I'm going to try not to fight back and not to argue. I'm going to try instead to explain as candidly and carefully as I can why originals are not moved by these arguments, which I suspect I've heard 20 times before. Unless of course you hit me with one I've never heard of before, maybe I'll convert on the spot, which I certainly don't rule out.
Adam Chilton: Wouldn't that be the day? No, I don't think I have anything in mind that's going to be that persuasive to you. Yeah. Let me ask you about some objections to originalism. Now, the first thing I want to ask you about is the Straussian objection, which is not Leo Strauss but our own David Strauss, which for my mind is by far the most persuasive theory of constitutional practice, and also constitutional interpretation. Now, at the most basic level Strauss' argument is something like saying that, "Originalism doesn't do a good job explaining key features of our constitutional experience, and that key elements of our constitutional form of government not only are not explicitly authorized by the text, but in some cases are just directly contradicted by the text."
For instance, a classic example of this is the First Amendment. The First Amendment of the Constitution says that, "Congress shall make no law," blah, blah, blah, blah, "bridging speech, establishing a religion," et cetera, right? It seems like the text is clearly saying we're saying Congress can't do this, but now it's widely established and considered that the President couldn't establish a religion or restrict speech or target political opponents purely based on what they've said. Similarly, for other executive branch agencies that are non-Congress agencies. Beyond that, courts in the states, right? These are instances where we've taken this doctrine of the idea of the protection of freedom of speech, freedom of religion, freedom of assembly et cetera and just ignored the Congress part even though that's the first part of the amendment. Understanding the American experience, the world would look very different if we just ignored that Congress piece about it.
Now, Strauss and others have so many other examples of this. For instance, under the strict reading of the Constitution a state could establish a religion, states could disenfranchise people if they were poor, or gay, or other features like this because the Equal Protection Clause of the Fourteenth Amendment doesn't protect the right to vote, which is where protections from these groups comes from. The federal government would be free to engage on discrimination on the basis of race or sex because the Equal Protection Clause actually only applies to the states. The Bill of Rights wouldn't apply to the states, et cetera. There's provision after provision like this where the constitutional practice and core features of our government just can't be squared easily with the text or with the original understanding.
Will Baude: Yeah, okay. This is a big one. The response is sort of amorphous in part because the list is really long. It's like the response to half of them from almost all originalists is to fight the hypothetical or fight the premise. It's to say, "That's an overly simple understanding of the First Amendment. It's true it says, 'Congress shall make no law,' but that doesn't by itself apply to the states, so we have to go to the incorporation of the Bill of Rights, which comes from the Fourteenth Amendment. That does apply to the states. It's true the First Amendment doesn't by itself apply to the executive branch, but we go to the Due Process Clause, which constrains the executive branch or the requirement to let the law be faithfully executed or principles of customary constitutional law." Then we're back to where we started.
There's plenty of things on the list where I think they just misunderstand what originalism requires. They think originalist response to those are genuine, and that takes care of a third, maybe half of David Strauss' laundry list. It's just a more sophisticated understanding of what originalism really requires. But not all of them. I think it's true that there's not much of an originalist case for applying the Equal Protection Clause to the federal government. Under a stronger originalism, the federal government may very well have broad powers to engage in affirmative action, or maybe you're right about the poll tax. Maybe you're right that there's nothing in the Constitution stopping a state from denying the right to vote to somebody who pays a poll tax. There's an explicit ban on poll taxes for federal elections, but none for state elections, and it's hard to find a basis for that doctrine in the Constitution.
Maybe I can fight the laundry list down to size, and I do think that's important, but I won't say that's enough. I won't say that takes care of everything. Ultimately, there's probably still some big gap between what originalists think the Constitution requires, and what lots of people in practice think our Constitution requires. That's right. The question is, "What are we going to do about the gap?" Then I think people sort of fork into two responses, maybe neither of which is completely satisfying. One is to go on the offensive and the say, "True. Originalism doesn't completely map onto our practice, but neither does your view, Professor Strauss." You look at what David Strauss thinks the Constitution requires and there are tons of things that are inconsistent with that. Like his theory can't explain pretty much everything the Roberts Court's been doing for the past 15 years because he thinks all those cases are wrong. That's one option, and then that's a big comparative.
The other is to say, "Well, who says a constitutional theory is supposed to explain practice?" Presumably part of what we have theories of constitutional law for is to tell us what the court is doing wrong and what it ought to do. The constitutional law would be a really weird topic if the answers like, "Whatever the court does it does it does," and then we've all just got to fit an equation to the dots.
Adam Chilton: Got it. Okay. I hear you on saying that many of the examples you can fight and say, "Actually, these examples are not inconsistent with the text of the Constitution. It's just that you have to have a reading of the text of the Constitution that takes into account the full document and not focus in on this one word that feels inconsistent," or something like that. It does at least seem to illustrate that descriptively what judges for generations and law makers were doing was not in being engaged in originalist project. We can at least agree on that, that it is not the way that people thought about a constitutional interpretation for a long time.
Will Baude: Again, I think we'll fight about for exactly how long, but sure. I'll spot you at least 50 years.
Adam Chilton: Only 50? You think by like 1830 that people were originalists?
Will Baude: Yeah, pretty much.
Adam Chilton: No. Come on. Really?
Will Baude: Yeah. Yeah. Pretty much. That's actually [crosstalk 00:07:12]. Until the 1830s they don't really think about it, because they're all just-
Adam Chilton: The Lochner era, the New Deal Court, the Warren Court. You want to tell me that what we were doing was originalist then?
Will Baude: I was going to give you about 20 years after the Civil War, say like 1875 to 1895, and then about 30 years at the heart of Warren Court, like maybe 1940 to 1970 or 1950 to 1980.
Adam Chilton: You think it's like this patchwork of where we come and go from [crosstalk 00:07:40]?
Will Baude: Yeah. I mean, I think that there's like originalism is more or less the dominant methodology, and then after the Civil War things get really kind of weird. Then the Progressive Era, the New Deal era that kind of retreat back to something like originalism. Even when they're overruled on the Commerce Clause cases and saying what was wrong with Lochner, part of the attack on Lochner is like an originalist claim whereas Lochner is traditional activism, et cetera. Then the Warren Court comes in and they go wild again, and then we got the retrenchment.
Adam Chilton: What about just initial martial court stuff? We're saying that's originalist?
Will Baude: Yeah, yeah. Pretty much.
Adam Chilton: Even just judicial review?
Will Baude: Definitely. Judicial review is easy. Judicial review, that's another one of those false... Literally there's a debate before the Constitution was ratified where they Anti-Federalists say, "We're really worried about this Constitution because it's going to involve lots of judicial review, and that sounds like a bad idea." The defenders of the Constitution say in writing, "It's true it's going to involve judicial review, but don't worry. Judges follow a law, so judicial review is not so scary. It's just judicial review. All they're going to do is apply to Constitution." That's the public state of play when people then vote to ratify the Constitution.
Adam Chilton: Got it. But it still takes us until Marbury v. Madison to figure this out?
Will Baude: No, the court engages in judicial review before Marbury. They just never become a fan of it.
Adam Chilton: Got it. Okay. That's the moment that we ascribe to it, but it's not necessarily there.
Will Baude: Judicial review is a big deal because that was the first time the court was going to do something that the President was really upset about. Part of the question was the court's going to do judicial review, but is it really going to work? That's why the court has been very clever to avoid provoking a constitutional crisis to avoid finding out what's going to happen.
Adam Chilton: Got it. All right. Let me ask you about another one along this line, like the First Amendment examples the Equal Protection amendments and whatever else. Let's take something just really simple, which is I haven't counted it, but the Constitution uses the word he a bunch of times, right? For instance, even when referring to the vice president, it says that, "He shall do X," and that, "He shall be the president of the Senate," et cetera. On the 20th we're going to swear in Kamala Harris as vice president, and clearly does not identify as a he.
Now, on this the response that I've heard when people have raised this to point out that originalism is silly is originals say, "Oh, obviously at the time everyone understood the pronouns he and the word men to refer to people generally because it was seen as something of a default." That may or not have been true, but it's also weird to think that the Framers thought that even though women could not vote that they could be President, vice president or president of the Senate or any of these other jobs. Even if it could mean that, it doesn't seem consistent with what they wrote down or what they intended or anything else. I think we all agree. Like no one with a straight face wants to defend that women can't be members of Congress or Senators or vice president or President, right?
Will Baude: That's right. Right. We have an assumption. Well, let's just spot that there was a general assumption that women wouldn't... I mean, this wouldn't even come up that they were [crosstalk 00:10:42] forward as electors. There was a widespread assumption. I think all originalists say, "You've got to have more than an assumption to be a constitutional rule." There's all sorts of stuff they assumed about the world, and we only care about the stuff that they actually put into the Constitution in some way. [inaudible 00:10:59] way he put this assumption into the Constitution in a way that some other rules are put in.
As I understand it, there is quite the evidence that the gender neutral he was the default, that he was just assumed to mean he or she. I think he appears in the Bill of Rights, for example, for like the criminal defense things. I think there's a key somewhere in one of the rights that criminal defense gets. They did know women could be criminal defendants. There were. I think there's no dispute that they were entitled to the same jury trial rights and other things that men were notwithstanding the use of the word he.
Adam Chilton: Got it. Okay. The idea here is that even though they assumed or may have assumed, we'll spot them that they assumed that the vice president or the President or whoever else would be men and they used the word he, that unless they actually said that, "Only men can be President," that this isn't a problem.
Will Baude: Right. I mean, they probably assumed there would never be state on a weird island chain in the middle of the Pacific Ocean that would be like a full state with all the same rights as all the other states, Hawaii. But they didn't put anything in saying like, "This is limited to the continental United States," or anything like that.
Adam Chilton: Yeah. I feel like this is an argument where originalists have it both ways. I swear to God, if there was an argument that said like, "States, contiguous in nature," and some language that didn't specific it had to be contiguous but strongly implied it and it was politically advantageous to rely on that language, there'd be 15 articles saying like, "Ah, the island language makes it so Puerto Rico can never be a state."
Will Baude: I think you're right. No, I think you're right. I don't know if it's just political deviance, but I do think these kinds of constitutional assumptions are something that people don't think clearly about. If there are clear-cut examples people can think clearly about them, but then in all sorts of areas people get confused. This is actually an important area where scholars help clear stuff up. There's right now a debate about can Congress make DC a state. Sure enough, there are several articles saying, "They can't make D.C. a state because you can find various places where they clearly assumed the District of Columbia would not be a state." But they never said it can't be a state, so I think obviously it can be a state. Yes, there are already op-eds in The Wall Street Journal saying that, "D.C. can't be a state," anticipating the D.C. state had a bill of 2022. This is an area where originalists get sloppy.
Adam Chilton: Right. Okay. Fair. It seems exactly right to me, which is that when people find it advantageous to take any textual hook they said, "I've got a textual hook plus original understanding, and therefore the Constitution flatly bars this kind of practice."
Will Baude: I think it's partly advantageous and it's partly just it is some sort of reflective equilibrium. Some of the people who think that, to go back to what we were talking about before we started recording, that former officers can't be impeached. They didn't quite say that, but they obviously assumed that. I think some people think that who don't care that much about whether he's impeached one way or the other. I think it sometimes is political advantageous and sometimes it's just sloppy thinking. Lots of political advantageous. Sloppy thinking enables-
Adam Chilton: Got it. Is there clear scholarship that outlines the constitutional assumptions theory here?
Will Baude: There are a couple of papers. I'm not satisfied with any of them, so I've been trying to write one. There are a couple that talk about it a little bit.
Adam Chilton: Got it. I think what you're saying here seems to go against a lot of standard originalists arguments, right? In that if you even take the classic originalist cases like Heller, there seem to be a lot of, "Well, we've got some words in the Second Amendment, we've got what the practice was at the time and just that they were doing, even though they didn't do it explicitly."
Will Baude: Heller I think is an example of the reverse. Heller is where Justice Scalia is saying, "Sure, maybe they assumed that this right was mostly going to be with the militia, but they didn't never explicitly say it was only about the militia." I mean, he has to work hard to get there. Because of that, their assumption is not binding. I'll just say I think you can find lots of individual examples that are being inconsistent about this on one side or the other, but working through them carefully is hard.
Adam Chilton: To get back to the argument here, the argument that I started with is a better way to understand and descriptively describe our constitutional history and our constitutional practice is that our Constitution created and started a set of federal common law, and that if you think about it, about common law development, it's easy to understand how we get to a position now where many of our rules seem inconsistent with pieces of the text. For instance, the examples that we've already given. It also can help explain why some parts of the text have fallen away and have very little influence on our constitutional practice and we're okay with that. Perhaps the Privileges and Immunities Clause or the 10th Amendment or other pieces of the Constitution where they just don't play a big role. Now, it's easy to explain that descriptively, the state that we're in right now, if you set aside originalism. It just still seems tough to me to have an account, even not just the textual arguments that I have, but the relatively disfavoring of some pieces of text if you don't have something like a common law constitutional view.
Will Baude: Yeah. Again, I think this is where there's a mix of some of that I think is where originals say, "Well, we've done something wrong by doing that. Maybe it's true. Maybe it's true that the Supreme Court buried the Privileges and Immunities Clause alive. We should go back and recognize how embarrassing it was to let former Democrats who were opposed to Black freedom kill the Constitution and we shouldn't just be cool with that." I think that's one. That's half the originalists instinct. The other half though is that there still is another part of our practice. When the court overrules cases, all the time it'll say, "We're overruling this case because it was wrong when it was decided. It misunderstood the Constitution back then," as if there was like a truth out there that doesn't exist in common law cases.
There are all these provisions of the Constitution that you'd think we would love to give up on, like whether it's the Electoral College or whatever that are in there where we just seem to all agree we're stuck with them. There's no reason we can't kill them, even though in a common law world we totally would. There's something about that account that seems unsatisfying. I'll just say, because we're going to talk about this later when we do this again, I think this is one of the biggest and most important challenges to originalism. I think originalism probably does need to make some changes to meet this challenge. I think it's a big one.
Adam Chilton: Okay. Challenge one that we just finished discussing, it was that descriptively originalism doesn't do a good job explaining our constitutional experience. Argument two is that not only does it not do a good job explaining our constitutional experience, it's not something that's required to have a constitutional system. Here's what I mean by that. It seems perfectly possible to me that not only have we had a system that was not originalist, but that you can continue to do so and that it can function reasonably well. Here's what I mean by this. Not only were key pieces in U.S. history our government wasn't originalist, we have states that frequently have not been originalist when interpreting their Constitution.
As we discussed a little bit in our last discussion, there's many countries around the world that have essentially no originalist constitutional tradition or very, very little, and many of those are countries that are functioning extremely well. It doesn't seem to me necessary that terrible things will happen if you don't have originalism. Yet a lot of the argument seems to be just a parade of horribles that would result if we move away from the text, right? What is this? Why do the originalism seem to think that the world will fall apart if you stray away from this system that we've actually in fact only had at best in some periods in our history?
Will Baude: Yeah. Putting aside the practice challenge, I think some of the world will fall apart stuff is overblown. The world won't necessarily fall apart. At least I think there are basically three choices. Something like originalism, something like precedent and something like judges applying their own view of what's a good idea pursuant to whatever method you want. I think those are kind of like the three real sources of things you can do. If you don't have originalism, you presumably have more of the other two. Some mix of precedent and judicial choice. It's hard to have a system that's all precedent. Even like David Strauss' common law constitutionalism, he acknowledges you can't just have a system of nothing but precedent, right? [crosstalk 00:19:22] have originalism when there's no precedent, and also judicial choice when there's bad precedent. It's like precedent with some doses of the other two.
Then I think we agree. The system probably has some amount of precedent and some amount, some ratio of either originalism or judicial choice. That's really what's going on in this rhetoric, and I think the real question is what's the ratio or originalism to judicial choice? I think that's right. You can have totally well functioning systems that are based mostly on judicial choice plus a little bit of precedent and very little originalism. There aren't that many states that do that, but there are other countries that do that and they seem to work fine. I suspect it's something about American attitudes towards elites and sort of the complicated role that elites and judges play in our political order that makes it harder for us to have a system that thrives in that much judicial choice. That's sort of what the Warren Court was going for, right? I don't know. It doesn't seem to have worked, but I think more honestly that's what's going on underneath the rhetoric about what's going on here.
Adam Chilton: Yeah, I guess. I mean, even to just focus in on the Warren Court. In one sense it doesn't seem to have worked, and in another very real sense we had Brown v. Board and Baker v. Carr, which seemed to be perhaps some of the most important moments in our history and I wouldn't give back for anything. I mean, I don't know. It doesn't seem problematic to me. The parade of horribles that have resulted is greater increased political participation and equality, right? I'm always curious when people are like, "Man, if we're just all throw away and go to judicial values, all of a sudden we won't have segregated schools and gay people won't get married." I mean, what's the horrible that people are still willing to defend?
Will Baude: [inaudible 00:21:04] was ambiguous about whether I meant it was bad or just it fell apart, like they couldn't sustain the reign of judges.
Adam Chilton: Yeah. Strategic ambiguity is sort of your thing though, so...
Will Baude: Yeah. Yeah. Fair enough. I guess, obviously descriptively the opposition to the Warren Court and the rise of originalism is some mix of pro-life opposition to abortion jurisprudence, racist opposition to equality jurisprudence, business opposition to a lot of jurisprudence, and a lot of people concerned about excessive regulation [inaudible 00:21:38] process and a bunch of other stuff. We built a whole coalition that caused it to fall apart. I do think the Warren Court wanted to make wealth a suspect classification and just basically use the Constitution to upset a lot of the basics of the capitalist order. I think that would have been very bad. I mean, not just because capitalism is good, but because the way in which the courts would have been able to address it would have been the worst of all worlds. We wouldn't get a rational technocracy. We would have gotten some crazy incredibly inefficient system that probably destroyed all the wealth in America. We didn't go down that route to be sure.
Is it Justice Scalia had an interesting realist version of this. His version of this was like, "Of course there's going to be judicial choice. Of course judges are still going to do some stuff willfully even in an originalist system." But when they're closer to the optimum level of judicial choice, we tell them not to because there are obvious incentives for self-dealing." Look, if you're making a complaint about originalists is that they aren't quite originalist enough in practice, it's not that big of a complaint. We should mostly emphasize originalism and then we'll get the optimum amount of justice.
Adam Chilton: All right. I want to come back to this idea. I think that this is actually an interesting point. I wanted to go through four arguments here, and we've gotten through two. The first argument is just the practice complaint, which is originalism doesn't do a good job explaining our practice. Two, that not being originalist is a system that many places have used, and that it's gone reasonably well in both U.S. history, other countries, states, et cetera. It's not the case that we have no alternative. Now, here's the third argument that I want to get to, which is that given that we have in practice haven't been originalist and don't have to be originalist, the third argument then is that I think it's if we're originalist it would be a matter of choice. That is we would be choosing to be originalist in some sense, and I think it's a particularly immoral choice to focus in on to prioritize the views of the founders so heavily.
This is for a few reasons. Now, there's just the starting point that Strauss, for instance, has referred to as the paradox of constitutionalism, which is to say roughly that we have so much more in common currently as a person living in the United States in 2020 with a Canadian than we do with someone that lived in the United States in colonial Virginia in 1780. However, for some reason if we have a really strong form of constitutionalism, it would tell us that our choices and our rights are circumscribed by the views, the decisions and the choices made by this person that is just radically different than us, right? There's something weird about that that we're willing, even though we'd think it ridiculous that a Canadian can pass vote on something and it would directly influence our rights, but that we are okay with it when it's someone from 1780.
Now, that's what like I said is sometimes called the paradox of constitutionalism that choices about your life and your choices are set long before you're born. I think there's some more insidious in this particular case, which is at the time of the founding, the people that were in the room are exclusively men, exclusively white men, and exclusively white men of a particular set of politics of a particular social class. If those particular set of white men not only didn't represent the interests of many Americans, they explicitly were trying to harm the interests of many Americans by writing slavery directly into the document, excluding women from the franchise, the treatment of Native Americans, a range of other choices that were made along the way.
Now, here's the problem. So many of our key constitutional debates that we're having that really get people worked up are things like rights to marriage inequality, equal protection, protections against sexual or racial discrimination, the right to choose, et cetera. Issues that implicate the rights of women, of sexual minorities, of racial minorities, et cetera. The idea that we when we A, my first argument, in practice haven't prioritized originalism, B, don't have to, but then C, that we choose to favor a system of constitutional interpretation where the deck was stacked against these groups seems really problematic to me.
Will Baude: Yeah. It's interesting how much work the first two arguments are already doing here, which is going to be important because it suggests that if we can account for practice-based argument and say, "It's not a free choice in the same way," maybe we could side step this, which is something originalism hasn't done for a long time and I think is important too. Just two funny things about that. One, I think it's right that a lot of that is the paradox of constitutionalism, which is really just the paradox of law. It's not just constitutions that are enacted a long time ago by people who don't represent us, but the habeas corpus statute and the [inaudible 00:26:32] statute are enacted by groups of white men of a particular class. A lot of laws like that.
This almost adds up to a very philosophically compelling case for anarchism. It's not really clear why government is just and why... For Canada, it's not clear why somebody who lives on the north side of Chicago gets to tell me what to do. For most things it's like, "I've never met this person." I don't know a good answer to that, but that's sort of looming here, and I feel like that's right. This is a particularly strong version of it.
One funny thing though about almost everything you said is all of the things that we really get upset about now are actually not about the original Constitution. Almost everything on that list are fights about the 14th Amendment. They are fights about individual rights and equality principles that are in act after the Civil War, which is still a long time ago and it's still an incredibly narrow subset of the American population, but it is different from the first story, right? It's an amendment written by people who are trying their darnedest to protect the rights of the most oppressed minority of American citizens as much as they can, fighting and killing people to get it done, and didn't do it well enough. It's a slightly different paradox. Then we think about it. I think part of the originalist question is, "Were they onto something? Should we be trying to figure out what they were trying to do to vindicate it, or should we give up on that and have those fights again for ourselves?"
Adam Chilton: Yeah. First up, I agree it's a little bit not just a paradox of constitutionalism but a paradox of law that you are controlled and influenced by people other than yourself. There is something special or unique about constitutional law being a higher order law that both is supreme to other legal decisions and that is more difficult to change. In some cases, things are explicitly unamendable, right? Our only choice would be to rip things up and start from scratch. If things aren't explicitly formally in a jury sense unamendable, they're nearly de facto unamendable because they would require states or senators or whatever to give away their own power in a way that just isn't feasible.
Now, I also agree with you that the practice arguments are doing a lot of work here. The first two arguments to get to the third immoral argument, and that I do think that we're unable to say, "We need to scrap the Senate tomorrow," although I would like to reform the Senate, and that we would scrap the way that we elect the President tomorrow, even though I would like to reform the Electoral College. Whereas with originalism, because realistically that's the course that we're on, that's our practice, that's our history, that's both were written in the text and our practice.
Originalism isn't those things when it comes to the constitutional interpretation at the Supreme Court. It does have much more of a this radical anti-conservative feel to it, right? Which is always sort of weird to me, which is it feels very anti-conservative to say, "Let's in case after case scrap our precedent and that we've built settled expectations over and allow clerks that work for Thomas to try to re-read these historical documents and re-figure out how we should structure our system of constitutional law."
Will Baude: Yeah. Again, I'll say maybe this is an example. Maybe this is one of the arguments [inaudible 00:29:48]. I think if we had never done originalism before and we had some totally non-originalist legal system that was working just fine, it would probably be a mistake to swoop in and try to just start doing originalism, even [inaudible 00:30:01] Constitution. My understanding of Israeli constitutionalism is that it's explicitly very much anti-originalist and basically builds a written constitution out of documents that weren't even supposed to be a written constitution. Now, whether we think Israeli judicial review is working just fine or not, it appears to be very contested, but I don't know.
I'm inclined not to fly over Israel and start telling them that they're doing it wrong and have to be originalists. Yeah. I think this goes back to the previous. What's puzzling about our tradition is in some mix, you can only have some mix of precedent and evolution that's a big part of our legal system, but some mix of recurrent interest and pursuit of the text, and even use of the text upsets several practices. Both of them are going on in a lot of the periods we're talking about where they're both parts are tradition. Just a big part of the constitutional law project just need to figure out what to make of that. Until recently, I think originalism versus David Strauss kind of was just picking sides in a historical battle. More often, the originalists were on the right side of those fights, and David Strauss saying more often [inaudible 00:31:08] of those fights. They seem both to be there.
Adam Chilton: Yeah. Well, let me ask this though to push back at you, which is last week when we discussed what the case is for originalism, the first argument that you raised you called it the linguistic case or something like that. The linguistic case you said is that, "Think about a fried chicken recipe, and just sort of descriptively what a fried chicken recipe is is that you're telling people in the future how to recreate this fried chicken. The way that they should try to figure out how to make this fried chicken is to figure out what it is you were doing and recreate that." It's sort of making the case that what a constitution is should be interpreted in this originalist way.
Then now, you just say things like, "Well, if we hadn't been originalist, then we wouldn't have to be it." It just all makes me think that the initial premise, this sort of analogy that we're analogizing to a recipe, is just a false premise. We could think that the way that Constitution should be interpreted is the way that constitutions have been interpreted in most countries at most times in most historical periods without having to pretend it's chicken that we're making here, and we're instead making a system of governance and that this just descriptively doesn't get the case done. In other words, the fact that you can say it doesn't make any sense to fly to Israel or the United Kingdom or Canada or tell them how to do it really cuts a huge leg out from under the chair of originalism.
Will Baude: Maybe if the argument was talking about it before. Maybe I'll have to build a new leg to make this work. But I'm not sure that this shows that there are multiple methods of interpretation as much as it shows that sometimes we care what the Constitution says and sometimes we decide we don't care. I mean, yeah. I don't think David Strauss is really... I mean, he can play the game, but I don't think he's really purporting to interpret the Constitution when he applies the common law constitutionalism.
He's just saying like, "Sometimes some stuff that's not that important will gives me answers I like I'm willing to look at the Constitution. But when it tells me something I don't want to hear about something that's really important, I'm not reading it." Which his a lot like a fried chicken recipe. If you just needed a recipe, you'd follow the recipe. But if you have a really strong opinion on how to make fried chicken or you're a vegan and think fried chicken is immoral, then you just ignore the recipe. It's not like its own method of interpretation. That's just some people don't eat chicken.
Adam Chilton: Got it. All right. Okay. The case here that I wanted to make and wanted to lay out here to get to this third argument that it's immoral, that to me I do think really is an important objection, and it's impossible to separate at least in the Untied States the way that this debate has played out has been one that is correlates heavily with partisanship, and correlates heavily with policy preferences. It really does feel like there is a set of constitutional scholars and judges that have said, "Here is a method that happens to get you the results that I want and that are pushing it in this way that it's like a wolf in sheep's clothing where the sheep is like, 'We have this neutral, fair system of interpretation that removes the judges from it,' and the wolf is like, 'By the way, it just so happens that there's original sources that shake down the way that I wanted all of these times,'" right? It's impossible to separate these things.
Will Baude: I don't think it's impossible. I think this is really important. The most important originalist in the 20th century was one of the most Liberal justices in the Supreme Court, Hugo Black. He used originalist arguments in defense of the incorporation of the Bill of Rights, which was largely a Liberal project. It's the basis for the Warren Court revolution. The opinions, both him versus the Justice, are full of hundreds of pages of delving into the speeches on the floor of the 14th Amendment, and trying to figure out what John Bingham meant, and the justices started begging law professors to write more originalist articles taking on Justice Black, and then other Black acolytes are writing articles. It's the first major originalist fight in the literature of the 20th century and the polarities are reversed.
Adam Chilton: I didn't realize that.
Will Baude: Moving onto modern one. I think what's really going on is originalism is the natural recourse for people who are upset about the status quo. If you generally think precedent is on the right track and that justices are applying it in common law fashion are on your team, then you just go along with it. But when you have some big critique about the way things are working right now, like originalism is a natural place to look. Maybe you then go into the documents and can't find anything to get what you want and you give up on originalism. But if you're trying to say, "Something has gone wrong," and you can find originalist evidence that [inaudible 00:35:30] doctrine, it's a really natural thing to do.
I think that's why we're seeing more Conservatives start to say they don't care about originalism anymore once they win the court, because it was a really useful tool for them to critique a court they felt like was on the wrong side. I predict you're going to see Conservatives still running away from originalism once... Who needs it? I mean, this is like Adrian Vermeule's project is pretty much explicitly like, "Why be originalists? We should be common law constitutionalists who are just conservative."
Adam Chilton: Right, that are recreating a theocracy in the United States or whatever it is that [crosstalk 00:36:03] specific argument that Vermeule is advancing.
Will Baude: If a theocracy takes over, I predict a strong resurgence of Liberal originalist arguments in the Establishment Clause being like, "Well, maybe we shouldn't have given up on originalism quite so fast."
Adam Chilton: Fair. Okay. Final argument that I wanted to raise was one that you already alluded to about Scalia's position on this, which is if it were the case that originalism was a method of constitutional interpretation that could be applied consistently, that we could figure out what the original public meaning and the original understanding is of various provisions, and we can interpret in a consistent way, and both sides are willing to do it, then maybe I'd be persuaded that this is some sort of fair system of constitutional interpretations.
Here's where it feels from where I'm sitting, which is if you were to take the most prominent originalist judges like Scalia or Thomas where the cards are really on the table, for instance, take Bush v. Gore or other voting rights cases that require deeply unoriginalist decisions to get the Republicans to win, they've been willing to do it. They've been willing to break on a number of things. Now let's take the politicians that claim to be originalists, Josh Hawley and Ted Cruz who are both former Supreme Court clerks, talked about being originalists again and again. They're advancing straight bonkers views in public about what the First Amendment requires on Hawley's book contract, and what Pence is allowed to do in the court. Now some of this is just Twitter rhetoric about the book contract, but the arguments that they were willing to advance on the Senate floor about certification of election and the role of Mike Pence, those are elected officers of the United States that are claiming constitutional authority to do what they're doing.
Now, here's why this is important. Originalists have shown, whether or not they're judges or politicians, when they really need to they're willing to set aside the original intent. Where I'm sitting, it just feels like they're really willing to do it to stay in power. They're just not willing to do it if it means more rights for women or gays or Black people. Once it's the case that advancing political projects is on the table, the ones that they're willing to advance just seem particularly unimportant relative to other projects. Being scolded by judges about unprincipled it is about politician outcomes, it feels so hypocritical consistently again and again.
Will Baude: Yeah. This might be just demanding something that no constitutional theory can deliver. I'm not sure there is a constitutional theory that passes this test. I think for a while it seemed like the pitch was that precedent was going to pass this test that at least we could have sort of like a gain theoretic agreement that we'll all stick to precedents even when I stick to your precedents you don't like, you stick to my precedents I don't like. I think every justice on the Supreme Court has shown that if they really don't like a precedent, they're willing to overrule it. Nobody has a precedent on an issue that really gets to them where they say, "I'm stuck with that one."
Adam Chilton: Yeah. "My hands are tied." Agreed. Yep.
Will Baude: If a precedent doesn't do that work, I'm positive that all the methods of judicial choice don't do that work. I mean, they rarely even ask you to do anything you think is bad because by their nature it's sort of like, "Do anything you want." Justice Breyer has never found something that really bothers him but is still required because that's a matter of pragmatism and cross benefit analysis or something. Maybe this is just a wash. Maybe nobody can pass this test. Or maybe it's a matter of friction. Maybe all these things can make you somewhat less likely on the margin to be willing to indulge your policy preferences. Or like use up some budget of credibility when you indulge your policy preferences.
Of course, you'll still blow your budget on the things that you really, really care about, but there are just fewer of them than there would be in a world without originalism. If you compare Justice Alito, who is barely an originalist, to Justice Thomas or Justice Gorsuch, who are more originalist, it seems like there's a difference between how willing Justice Alito is to indulge his policy preferences and how willing they are to indulge theirs. It seems like you get at least some friction. Not enough to stop the things you might most want to stop but nothing will, but I don't know. I think that just seems to be what you get.
Adam Chilton: Yeah. I guess I don't know. I mean, if we set aside constitutional interpretation for a second and just assume that we're just talking about constitutional common law for a second in the really strong Straussian way, the way to think about precedent in a common law system is that if there is an exact same case that comes up that needs to be decided the exact same way, we don't have any problem with a precedent. We're just going to do it. Then there will be new problems that we haven't thought of and the precedent might evolve as you have to solve this new problem.
Then there's some instances where we realize, "Wait a second. The precedent that we've built up, we're on the wrong path. It's not working well." Now, it's judges that decide that, and they'll decide to do things like, "Wait a second. We're going to break privity," which is a common law rule that's existed for hundreds of years to allow people to sue manufacturers of products because we want products liability litigation or something like that. These are like radical changes that people at some point will decide to make.
Now, they don't happen often or always, but they happen sometimes. The constitutional interpretation feels the same way, right? Which is sure people are going to throw aside some of the other side's most important precedents if they can get the votes, but they don't do that always. Once a twice a term. I don't even know if that's accurate. It seems like we've got a theory that sort of can descriptively account for what's happening here, and that that's just what we should ask of judges. "Try to follow precedent, try to build it up slowly, try to have predictable constitutional rules, but we all get that every once in a while you're not going to be able to help yourself and you're going to radically shift a doctrine."
Will Baude: This may be an unfair claim, and if somebody could prove that I'm wrong before next time the next time we record I'll take it back, I don't think you can find any case where any of the non-Conservative justices on the court [inaudible 00:41:56] court voted for something they didn't like because of precedent and provided the marginal vote. I think there's like zero cases for a precedent that's ever done any work for any of them on an actual outcome of a case. You can find some where they just [inaudible 00:42:12] and signs onto a doctrine that already has five votes that's just like, "All right. Well, I'll be your sixth vote because you've already got precedent on your side. I'm not going to dissent." I don't think you can find any where it brings people along. You can find at least some where the originalist justices do, whether it's Scalia on flag burning and Justice Thomas on the Confrontation Clause and a few others. I think it's zero to [inaudible 00:42:35].
Adam Chilton: Since you can't think of an example, it should be totally unsurprising that I cannot think of an example off the top of my head. If true, that's a point for you.
Will Baude: Ask your friends. We can round table that. All right. I think we're over the promised time, so shall we adjourn until... We're skipping next week because of MLK Day, and then we'll get back on our regular Monday schedule and hopefully a more regular beat after that?
Adam Chilton: Yep. That's right. Sounds good.
Will Baude: Okay. Thank you. Thank you everybody for coming, and looking forward to keeping this up. 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.