Dissenting Opinions

The Emergence of Originalism

Episode Summary

In Episode 1 of Deep Dive, Will and Adam discuss the rise of originalism up to about 2013, including the three main arguments for originalism: the linguistic argument, two consequentialist arguments, and they ponder: What's the difference between a fried chicken recipe and a Constitution? How important are state constitutions compared to the US Constitution, and how easy or difficult should it be to create constitutional amendments? What should the amendment process look like? Spoiler alert: the movie plot of Lincoln is discussed.

Episode Notes

In Episode 1 of Deep Dive, Will and Adam discuss the rise of originalism up to about 2013, including the three main arguments for originalism: the linguistic argument, two consequentialist arguments, and they ponder: What's the difference between a  fried chicken recipe and a Constitution? How important are state constitutions compared to the US Constitution, and how easy or difficult should it be to create constitutional amendments? What should the amendment process look like? Spoiler alert: the movie plot of Lincoln is discussed.

Recorded January 4, 2021

Episode Transcription

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 of our winter quarter over Zoom in front of a quote unquote, 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 everybody to the first episode we're recording of a new podcast for the Constitutional Law Institute called Deep Dive. The basic idea of what we have in mind is to take a quarter and spend sort of sustained attention on an argument. In this case, an argument for using the original meaning of the constitution to interpret the constitution, originalism, and to try to sort of do a deep dive into why people think that's a good idea, what the best arguments are against it, how originalism responded to that, how the responses may create their own problems... To try to give it sort of a more serious and deep coverage than you get your average [inaudible 00:01:23] class, or your average debate over originalism or anything like that. To really try to do a deep dive into what's going on.

            And I should say that spirit here is cooperative, so this is not a debate where the goal is for me to convince you that originalism is right, and Adam to convince you that I am stupid. I would lose that debate. But in any case, that's not our goal. Our goal is to actually just try to work through it, to explain it. So, I promise that Adam finds originalism very puzzling, and so I'll try to explain some of the puzzles and he will skeptically try to pull it apart. That'll force me to come up with better explanations and we'll spend the quarter sort of walking through those arguments and see where they take us, and what's satisfying and what's not. What we're going to do today is just start with originalism up to, let's, say 2010 or 2013. So, there are three main arguments for originalism that have had currency for a long time.

            And over the course of this talk, we'll talk about all three of them, and Adam will ask questions about at them and we'll see where that takes us. We'd love to get questions from you all as well, in the chat probably is the easiest. Anytime towards the end, earlier, and we'd love to get feedback and suggestions again, by email or the chat, or however you want to do it as we go. There are going to be plenty of times... We'll probably do the next week, we'll devote most of our time to criticisms of originalism. There will be plenty of that, and there'll be some of that today as well, just in terms of where we're going. Does that make sense, Adam?

Adam Chilton: Yeah, this all sounds great. Let me just add briefly to that, the way that I see what's going on and why I think this is a worthwhile project and why I wanted to do it, which is as either a law professor or a law student or a practicing lawyer, increasingly in constitutional discourse, originalism comes up again and again and again. Now that there's solid majority of justices on the Supreme Court that are at least sympathetic to originalism, if not avowed originalists. I think that these arguments are going to be even more important going forward. Now that said, typically the way academic discussions in the workshops that we have or the lunch workshops that we have, et cetera, plays out is if someone like Will or another originalist appeals to originalism, the rest of us roll our eyes and groan and think, "This ridiculous argument again." 

            And so, what I'm hoping to do and asked Will to do, is to give me the best case for originalism from the beginning. That is so that I can understand the most charitable set of arguments, the best set of arguments, and fully understand the argument instead of, as I currently do, immediately being skeptical for a variety of reasons. My goal here is to learn from Will why smart people like Will are persuaded by this line of argumentation.

Will Baude:    So, here are the three arguments we want to talk about today. I should say, I don't find any of these completely persuasive by themselves. I think each have holes and that's part of what's led people, including me, to try to come up with new arguments to patch the holes. But these are, I think, the three core building blocks or the three baseline arguments that bring a lot of people sort of sympathetic to originalism in the first place. So, one of them is a... What I'm just going to call a linguistic argument, for lack of a better word. This is just what reading is like, and the other two are consequentialist arguments. Can we start with linguistic argument? That's the simplest place to start.

Adam Chilton: Yeah, great. Let's jump in. 

Will Baude:    Okay. So one of my favorite Law Review articles of all time, which I sent to Adam and did not make people, other people here read, although it's only 14 pages long is called On Reading Recipes and Constitutions by Professor Gary Lawson. The basic argument of the article goes like this: suppose you found a really old fried chicken recipe and you wanted to figure out what it meant, and it would say things like, "Take the chicken and cut it into pieces, add flour, cook until brown." And you'd be like, "What does this mean?" What you would do, he says, is you would just look at the plain meaning of the text and where there was an ambiguity, you would try to understand the historical context. So, if something was tasting wrong with your flour mixture, you'd wonder, "Well maybe when the person made this recipe they were using a different kind of flour," or that kind of thing.

            But that's just... That's what you would do in understanding what the recipe is and what it does, is you just try to figure out what the people who wrote it were trying to tell you. They're trying to communicate to you a recipe, you're trying to get the recipe. That's what you'd do. And then he says, "The Constitution's just the same thing." The constitution is just a recipe for government. It tells you how to hold elections, and who should be in charge, and what to do if different states do different things and what to do if crazy people try to disregard the results of the presidential election, and you just try to figure out what the people who wrote it were trying to do. That's the text plus the sort of original intent of the authors. It's really nothing complicated and only all these sort of people, law professors who want to  make things too complicated. I don't think there's anything more complicated to than that. So, does this seem crazy to you, Adam?

Adam Chilton: Yeah, I have to say, I find this analogy entirely unpersuasive. So, when you're giving someone a recipe, you have an exact vision of what you wanna be created in mind. So, you want your fried chicken to look exactly this way, to be this color, to have this level of crispiness, et cetera. You have tested and tried this recipe yourself, and you think you've perfected in some way that you know what should be done, and then you're trying to communicate that information to someone else. I really don't think that that's what's going on when our Constitution or any other constitution was drafted. Instead, I think, a better way to think about it is that you had a group of people that were imperfect, flawed, didn't have access to perfect information, et cetera, that were trying to create a broad outline for a process for resolving disputes, not necessarily prescriptive answers for exactly what the resolution of those disputes should look like. 

            So, they're sort of vaguely describing the process of cooking in many places and hoping that later generations will figure out, depending on whether or not they want chicken or casserole or prime rib, what to do with that information. But the idea that we are just trying to divine the recipe and get right what they had in mind just doesn't seem like what's going on at all here.

Will Baude:    Okay, so obviously this is an easy analogy to mock, but I actually think there's more to it. First of all, recipes can have that too, right? There are steps in a lot of recipes I cook from that say things like, "Add salt and pepper to taste," or, "Add some hot sauce if you like. Serve this, any of the following things," or whatever comes to mind. There are steps, even in a recipe, where they are giving some things up to you to figure out what to do. And similarly, the Constitution's not all vague, right? There are some things in it where it says, "Every state gets two senators," and that's just the rule. Not a framework for deciding about how many people should be in the Senate or about what kind of people should be in the Senate, but they're gonna be elected by the states, and there are two of them.

Adam Chilton: Sure. I mean, the Constitution is a combination of rules and standards, and I think the things that are explicit rules, we really don't have debate about. The Constitution will say something like, "The president has to be at least 35 years old," or, "This is the number of votes that is needed for a supermajority, et cetera." And maybe there's some weird exceptions somewhere where there's some kooky arguments, that 35 doesn't mean 35, but for the most part, that's not what we're talking about with constitutional agreements. We're talking about what due process means, what equal protection means, what freedom of speech means, et cetera, and these are the things that I think are intentionally vague. If we were just trying to figure out what they meant by 35 years old, and we had to go back to see how they counted age in 1970... Or in 1789, that I'd understand.

            But I think the right way to think of it is maybe like you said, the framers said something like, "Leave salt and pepper to taste," and intentionally leaving it open to interpretation. And then originalism feels like the project of going back and trying to calculate how much salt people added to their fried chicken in 1789, based on a flawed historical record.

Will Baude:    Yeah, so maybe. This is where I think some originalists are more vulnerable to this criticism than others, but I hope we're on the same page. It seems right to me that if the document leaves it intentionally vague, then you as a faithful interpreter shouldn't try to make it less vague than it is. If they say, "Add salt and pepper to taste," you shouldn't try to figure out... "Well, give me a rule, how much salt and pepper?" You should say, "Okay, that's what I've been commissioned to do." But if they didn't, then they didn't, and what if we can't tell? What if we get a phrase like "freedom of speech" or "equal protection of the laws", and some people say, "Oh, actually that's pretty precise." It might seem vague to you, but if you understood what they were trying to do, you'd see that it's pretty precise, and somebody else comes along and says it's pretty vague.

            That seems like if you get to a step in the recipe where now you're not sure, is this a stage where I'm supposed to just add as much salt and pepper as I want? Or is there some other principle that I should refer to, where they actually intended me to fill in the gaps? Maybe it says, "Add salt and pepper," and if I looked around enough, I'd see, "Oh, when they say add salt and pepper taste, they mean about this much." They don't mean add so much salt on it that it's inedible.

Adam Chilton: Right. If that's a version of originalism that we're going for, maybe I'm okay with this. If what we're saying is when the Constitution is vague, we shouldn't be trying to make it less vague through appeals to the historical record. But that doesn't feel like what's going on with so much of the modern practice, to me. I feel instead more what we have is Justice Thomas's law clerks trying to find articles on what three people thought at this exact period, and then acting like that's some kind of divine revelation about what these clauses mean and tell us about the limits of what we can currently do. And saying, "If you were to ever add more salt than this, you'd be unreasonable," where instead tastes can evolve and tastes can change, and the fact that someone had a particular preference at the time, I'm not sure that it was intended to guide us, nor should it. 

Will Baude:    Okay. Good, good. I mean, I think we're on the same page and now the question is just whether maybe we've defeated originalism by supplying good argument for it. I will say, even if my attempt to save this argument works, it's gonna be in tension with one of the consequentialist arguments for originalism. So, one of the two consequentialist arguments for originalism is it constrains judicial discretion and judicial discretion is bad, so there is like this funny see-saw where some people say, "We're originalists, because we don't want judges making stuff up." But if Adam and I are right, that sometimes the Constitution intentionally leaves things open ended, then somebody judges or somebody else is gonna be in charge of making stuff up.

Adam Chilton: All right, before we get to that though, I'm curious, why do we call this a linguistic argument? What do you mean by linguistic argument here?

Will Baude:    The idea is that it analogizes the Constitution to lots of other documents. I guess sort of an even more general form of this argument is, the Constitution is written down. What's the point of writing stuff down, unless you wanted people to read it and do what the author said? So, there are people pursue this analogy. Some people do an analogy to a recipe, some people do an analogy to a letter, to an analogy to, "I send instructions to somebody else to go buy something from me at the store." The idea is that it's just about kind of reading the words and trying to figure out whether the words are ambiguous or not, and it's weirdly opaque to consequences, to whether this is gonna be a good system of government, whether this is a good way to run the country. That's the sense of which it's just more linguistic or conceptual, I don't know. Is there a better label for it? I've never been happy with this.

Adam Chilton: Yeah, I think that it's not an ideal label. I can't think of what it is. It feels like what's going on here is not a specific linguistic claim. It's just appeals to analogies of other forms of written documents, which, it doesn't feel so much like a linguistic argument that's appealed to. It's just an appeal to the form of what we're up to here.

Will Baude:    All right. There is a much more sophisticated, philosophical overlay you can do on this that Larry Solum at Virginia is the most famous for, where you say, "It's a general matter of linguistics. Linguists have agreed that the meaning of a sentence is usually the speaker's meaning, and this is captured by a guy named Paul Grice." And then Grice has worked out how to figure out... How do people who read a text figure out what's the person behind it trying to say? There are all these fancy words like implicature and impliciture and quantum domain restriction, to capture the basic process of reading the document. I both don't know... I know enough to know that in linguistics, this is actually kind of contested, and so if you get linguists in, they'll all laugh at the idea that there's just a thing called reading and that's all that there is to it. I'm not sure how much it adds, so I like the fried chicken recipe more, personally, but there is an attempt to lay a whole super structure on it.

Adam Chilton: Yeah. All right. So, I'm on board with you that the fried chicken recipe is more appealing than this, and that this is exactly the kind of academic scholarship, at least if I understand you correctly, that I'm extremely averse to. Which is, I think there is a branches of many different academic disciplines, anthropology, sociology, philosophy, certainly law and other fields as well, that tries to take relatively simple concepts, run you through the ringer of big words, complicated arguments, and then come out the end and say, "Therefore, for all of these moves that are nearly impossible to follow, I'm, right and you're wrong." 

            And I think that that should be avoided at all costs, especially most of all in something like our democratic form of government, in which we're trying to bring people in and not use highfalutin ideas that no one knew of at the time to come up with a reason why actually, my preferred system of interpretation should be the correct one. So, I do appreciate the the move of sticking with fried chicken instead of philosophical structures and the nature of language.

Will Baude:    Okay. Lest all the smartest originalists eventually hear this come after me, I will say, I think we could say more to defend them, but I won't. Actually, I'll just say two other things. So there is... One version of this argument that comes up is a lot of this modern philosophy of language did not itself exist at the founding. So, there is an irony in originalists trying to interpret language written in the 18th century by using a linguistic philosophy from the late 20th and early 21st century. It seems like something funny is going on here, and if you go read founding-era philosophy of language, which of course people have done, it's a totally different way of thinking about thing that nobody accepts anymore. 

Adam Chilton: Well, I think that what you're getting at is a specific instance of a more general irony which is, as far as I can tell, originalism is a project of the second half of the 20th century saying that we need to be stuck to the second half of the 18th century. Just inherently, there's something weird that we came up with the idea that we cared about what the original meaning was long after the people that were there at the original meeting had died without trying to push this upon us.

Will Baude:    Let's talk about this a lot next week. 

Adam Chilton: Sure. 

Will Baude:    I think this is... But I think this is important. I was just going to say the other thing about these really complicated philosophical concepts, just in defense of them, is that often I think they just don't matter 99% of the time, but they can actually be useful at explaining weird edge cases. And if you don't care what the weird edge case is, then you don't ever need them, but people including Constitution interpretation, get tied into knots. The questions about, "Well, how can a document that's written by multiple people have any meaning?" Because if meaning is about the speaker's intent and one of the speakers secretly wanted to do something else, then doesn't that make the text meaningless? And then people come along and say, "No, no." There's just a whole set of weird hypos that these things can be useful for solving, but if we don't care about them, then I think we can dispense with it.

            It's not that they're useless, but they're gonna solve a problem that neither of us cares about right now. 

Adam Chilton: Okay. 

Will Baude:    So, the other main arguments for originalism, obviously, are more consequentialist, that this is a good idea. This is a good way to interpret the constitution. So, it's not just inherent in the nature of reading. Even if you can have different analogies and say that the Constitution's not quite like a fried chicken recipe, this is still a good way to do it. I think these also kind of come in two major types. One which is most famously put forward by two professors named John McGinnis at Michael Rappaport is that the sort of... To rely on the process that produced the Constitution. 

            They say... Again, very much oversimplifying, apologies to everybody, the Constitution was adopted in a sort of process that's remarkably likely to generate a good framework for government. It was adopted in this broad, supermajority framework where it needed lots of states and large majorities to produce little things, so you couldn't just get something that was partisan. The more people thought it was a good idea, the more likely it was to be a good idea, and that process makes it likely that the Constitution's pretty good. And then it's not perfect, obviously, so that process and substance was deeply flawed. It excluded lots of people who shouldn't have been excluded, it ratified various injustices, and those have been fixed over time using the same supermajority process. So, we have amendments to end slavery and include Americans and women in the political process and so on and so forth.

            So again, the supermajority process... It's presumptively good, and then it produces these amendments that are also presumptively good. And if you stand back and look at it, having a system where the Constitution can only be given meaning by pretty big groups means that you're forced to come up with a kind of broad consensus, and the Constitution will only contain things that a broad consensus of people think is a good idea, and therefore, we should interpret it that way. That produces this kind of broad framework that's of generally sound structure, like you wanted.

Adam Chilton: Got it. Okay. Let me say there is in comparative constitutional law, this set of arguments that constitutions that you can sort of measure that were produced for more participatory processes are associated with longer-lasting constitutions. For instance, the kind of... This is not perfect, and there's exceptions. For instance, the Constitution of Japan was essentially written by Douglas MacArthur's staff. It hasn't been amended once since, was not participatory, and yet is now relatively long-lasting. But in general, the kind of constitution that just doesn't last and doesn't have any staying power is where a handful of people, whether or not a former colonizer or American lawyers in Iraq or whatever else, try to come up with a constitution. That's the kind of constitution that won't last. Whereas when you have these broad constituents assemblies, listening tours around the country done by different groups, et cetera, that those constitutions have been associated with greater staying power.

            So, I do think there is something to the idea that more participatory processes are likely to produce better outcomes, and outcomes that people are able to live with and that won't sort of clearly disadvantage groups in one way or another. Now that said, if you were to try to think of, in historical terms an exclusive process, I'm not so sure that the American founding isn't pretty far on the bad side of the ledger. We only have people of one gender, of one race, of one political class that had one view on the right way to structure of the government at the time. And so, we have white men that are rich, educated, wealthy, have a particular set of religious views and were opposed to the British. I don't know what percent of the population that represented, but I would be absolutely astounded if it was more than 50, because just once you take out women, we can't get there.

            So we're talking about, what? 20% of the population that these particular views might represent, at best. When I think that people appeal to the idea that we need broadly popular participation to have a valid process, they're talking about a lot broader process than what we had in our case, and so that is an instrumental argument. It rings really hollow. The original sin of our Constitution is that we enshrined slavery and excluded so many groups, and then to appeal to the participatory nature as an instrumental argument for why we should care what those people think seems really wrong to me.

Will Baude:    Okay, good. I think the most insightful thing about this argument actually, which is also maybe a surprise to a lot of, now what people associate with originalism, is it makes the Constitutional amendments really important. This argument, I think it's clear if the Constitution was the Constitution that was enacted at the founding, the whole thing would fail. It wasn't adopted by a [inaudible 00:21:28] process. Somebody just pointed out in the chat, it's a supermajority of mainly wealthy white men, presumably have substantive views that that lots of other people wouldn't have had. That's right, so that's why the key... I don't know whether it's a patch or another piece of this argument is... 

            That means that we're talking about not just a participatory nature of the Constitution, but of the amendment process, and what adopting originalism does is it really focuses you on the amendment process and says, "To the degree there are flaws in the Constitution, the best way to fix them is again, the supermajority amendment process," which gives you a lot of very good amendments. Most of our amendments have been great. Maybe that's because we have this supermajority process to produce them.

Adam Chilton: Right. I understand, certainly, that without this, especially the Civil Rights amendments, the Reconstruction amendments, that beginning to even defend the Constitution is completely untenable. Until we get to 13, 14, 15, and revoking slavery, putting in a form of equal protection, et cetera, then maybe there's the case that we can do this. That said, the nature of what a constitution is about is trying to put in place restrictions on the wills of the political majority, to respect the rights of political minorities. And so, appealing to the idea that there's a process that requires a supermajority to amend, it's not obvious that this is gonna do a great job respecting the views of the minority that were shut out of the room to begin with. And then, their only way to make a change in their interest is to get a supermajority of people to agree with them, and so I'm not sure that the amendment process can do enough to correct that original problem.

Will Baude:    I mean, point taken and all. Is that the main purpose of the Constitution? It seems like step one of a constitution is just finding rules for setting up a government. Certainly right now, you got all these people who think they should be in charge of the government, and if we didn't have rules, we would just have chaos or fighting in the streets. So, step one is just to come up with some ground rules for how people... Who should be in charge that enough people will buy into that we won't have fighting in the streets, and will have some kind of regular transfers of power. And then because those governments... That's obviously gonna lead to all sorts of abuses, the immediate step two is how do we keep that from devolving into mob rule or a small majority, or a bare majority can oppress everybody else? You do need both for the Constitution to be doing something. Right?

Adam Chilton: Sure. I mean, you need to set up the rules for who has power and what they can do with it, and the limits on that power. I don't disagree that these are both key steps and we needed to figure out that we're gonna have a bicameral legislature and a president and a Supreme Court, and what other various other institutions that were established there.

Will Baude:    And that's why the amendment process seems like it's gotta be somehow trying to strike a balance. It can't be too hard to amend the Constitution, or else the Constitution will lack any democratic legitimacy, and the whole system will fall apart. But it can't be too easy or else, as you say, it won't provide any protections to minorities or other people.

Adam Chilton: Yeah, that's a good question. I actually don't know what the right answer is on this. For instance, the state Constitutions within the United States, there's obviously variants across states, but in general are much easier to amend than the national Constitution. And so, in any given election, there are states that are rewriting pieces of their Constitution through various referendum, and these come up fairly regularly. Are states that make it easy to amend their Constitution through these processes... Or I should say, relatively easy to amend their Constitutions through these process worse off? I don't know. I don't know what the answer to that is. I certainly know that the US Constitution at the national level is harder to amend than the state Constitutions at the state level, and our Constitution then becomes the site of so much argument, in a way that I just don't the think is true in other states or in other countries, the way that we have it. In other words, I agree that it can't be too easy or too hard, but the idea that we're anywhere close to the right balance to me seems seems questionable.

Will Baude:    I'm not sure we are there, but I think this is one of the things to be focusing on. I guess state Constitutions seem tough because they seem differently situated in important ways. You can escape your state a lot more easily, you can escape the US if something's going wrong, and you have the backstop of all these federal rights. At this point, I don't worry that much about what rights the Illinois Constitution protects because the federal Constitution protects a lot of rights. That there's a sort of a floor that Illinois can't go below, so I'm not sure how to think about whether the [inaudible 00:25:49] should be the same for both of them or not.

Adam Chilton: Yeah. All right, so let's think of this another way. I think there's two basic sets of things where the constitutional argument is most contentious. A specific set of rights within the Constitution and a specific set of structures that's formed within the body of the Constitution. So first on the right, I think what people are most concerned about is not all of the amendments, but the First Amendment, the Criminal Process Amendments, fourth, fifth, sixth, eighth, et cetera, and then the 14th Amendment most notably. Now, these amendments are the amendments that... Let's throw in second there, too, the Second Amendment. These are the amendments that we're fighting about the most and what they mean and how they should constrict our government, et cetera. 

            We can very at least agree that none of those amendments were passed with any meaningful participation of women and minorities in this country, and it is those groups that are demanding their rights. So, appealing to the original understanding of these amendments and using the fact that we were able to amend it to defend this thing, it just seems like all a circular bunch of crap to me, right? It's like, "Don't worry, you have the 14th Amendment. However, you have to interpret it the way that us white guys understood it in 1865," is not helpful.

Will Baude:    Yeah. So, factually, I'm not sure it's right that African Americans didn't participate in the ratification of the 14th Amendment. 

Adam Chilton: Fair. I apologize. 

Will Baude:    The ratification of the 14th Amendment is messy in lots of ways, because the...

Adam Chilton: I watched the movie Lincoln, so I'm an expert on this topic. 

Will Baude:    Okay. That's the 13th Amendment, Adam.

Adam Chilton: Ooh. Didn't watch it that closely.

Will Baude:    The, the 13th Amendment passes easily, and Lincoln is president and everybody's happy. The 14th Amendment is after Andrew Johnson comes into power and tries to end Reconstruction, and tries to campaign against the 14th Amendment. And The North holds the Southern states at gunpoint and tells them that they can only come back into Congress if they agree to ratify the 14th Amendment, which they do on the promise that they will respect all the civil rights of the newly freed African Americans. And then, they break the promise basically as soon as The North's back is turned, which is very fast. I don't know. I don't know. I mean, I don't know what to think about that in general. Maybe the whole process looks shady, but there's a point taken.... Say, there's a funny blend of process and substance going on in this argument. It's not saying the process is perfect.

            It's not defending the Constitution just by looking at it provision by provision and saying, "Free speech is good. Equality is good." And it's not quite defending the process, but it is saying it's some sort of blend. The Constitution has this increasingly majoritarian process that makes the Constitution increasingly liberty and equality and prosperity protecting, and that's a good process. Maybe the better way to think about it is, if we wanted to amend the Constitution today and pass new amendments, which lots of us do, we would want those amendments to be interpreted in originalist fashion, right? We would amend it, we would have an idea of what we're trying to do, and we would want other people to take what we did seriously.

Adam Chilton: No, we shouldn't want that. I don't think that that's what the people would want. So, there's this argument that I love that this economist at Duke called... named Timor Kuran makes about the great divergence between Europe and the Middle East. What he says is for, I'm gonna get the dates wrong, but let's say for... Until hundreds of years that the relative wealth of Europe in the Middle East is nearly the same, and there's technological developments that are taking place in the Middle East that are moving to Europe, and technological developments in Europe that are moving to the Middle East. But somewhere, I can't remember exactly when. Let's say five, six, 700 years ago, there's a divergence and Europe starts getting richer at a much faster pace than the Middle East. So, the question is what creates this huge divergence? What Kuran argues is that what took place is that the two areas adopted a fundamentally different attitude about governance.

            The example that he gives for instance, is that within the Middle East, that there were many fatwas, dictas, wives, et cetera... I'm gonna get these words wrong... Where essentially, you could have a proclamation and state, say, "This is the way that we will run our city. This is the way that we will run our charity. This is the way that we will run et cetera, and it can't change." And it's interpreted in an extremely originalist fashion. Europe, on the other hand, adopted a whole range of governments from the corporate form, to Parliament, et cetera, that we're all meant to be maximally... Or maybe not maximally, but quite flexible and allowed to change to different circumstances. 

            His argument is that we have this great experiment in whether or not you should have flexible government that can adapt, or government where you lock in some person's original meaning, and one goes poorly and halts economic development and human progress, and the other advances it. And so, the idea that, then, we should want to write an amendment that everyone has to interpret it exactly the way that we thought about it seems like a real problem to me. You're just saying like, "I want future generations to be locked into lower welfare." So, I'm not on board with this.

Will Baude:    Yeah. Well, I guess maybe this comes back to whether the amendment process, what the amendment process should look like, but not locked in permanently. Locked in until they can help with something better. Take the Electoral College. We all agree the Electoral College sucks, we should have something else. There have been attempts to amend the Electoral College 30 bazillion times throughout history. The problem is nope, we can't ever get enough people to agree on what alternative system will be better and workable. Once we can, we can do it. Until then, we're stuck with it.

Adam Chilton: Yeah. All right, this is great. This circles... I said that there are two main areas of contestation where... This is important. So, one is the set of rights that are protected by the Constitution that are part of the amendments, and then the second thing I would say is the basic structure of government itself. For instance, I have a beef with the fact that I think that one person, one vote is an important principle, and yet we have a set of institutions that systematically disadvantage people that live in cities or in concentrated ways, even though the city is the greatest invention in human history, that advances welfare and economic progress in so many ways. But yet we have a political system that disadvantages it because we have... The Senate gives more votes to land, that then is rectified through the Electoral College, which then influences the Supreme Court.

            And again and again, you have a system of government where small states, smaller interests have dramatically disproportionate interests. Now, that was baked in from the jump, and if you were one of these people that lives in Chicago, as we do, or in New York, or in LA, or in Atlanta, or in Phoenix, you're just systematically at a disadvantage against people with rural interests. And the idea that the amendment process can be your savior in this and solve that this... You were cut a bad deal because you weren't allowed in the room, I don't know how well it works.

Will Baude:    Right. Although, we didn't live in Phoenix or Chicago or anywhere when the [inaudible 00:32:42] enacted because we weren't there at all. Right. The think... 

Adam Chilton: Sure. Right. 

Will Baude:    Thinking about which way those cut for real people, I guess part of the point is if you look over time at efforts to amend the Electoral College, at various points people have thought it would help the Democrats, or help the Republicans, or help this group or help... We know which states it helps mostly, although even that's a little complicated because it also sort of disadvantages some of the big states that are not swing states. More or less know which states helps, but in terms of real interest on the ground.

Adam Chilton: Got it. All right. Well, I think I've broken the ground rules that we set out at the start of this, which is almost immediately, once you went to the participation argument, I started arguing back hard, but let me try to make sure that I understand the charitable version of it, which is to... Let me try to say it back to you, which... the instrumental argument is something like, either we can have rules that structure and constrain our government that are developed through a political process, and even though the one that we had is deeply flawed in a variety of ways, it's still some form of political process. In contrast, if we ever discard originalism, what we're saying is the policy preferences and political preferences of anyone that can get five Justices on the Supreme Court, that can change our system of government, our rights, our structures, et cetera. 

            And on average, the political process, however may flawed, is one where we should put stake or be willing to prioritize, as opposed to the preferences of those five Justices.

Will Baude:    Yeah, so that's pretty close, and I'll just say this leads us into the second consequentialist argument, which may be necessarily intertwined. Let's just go there and that's to say, whatever you think of the process, the amendment process, the supermajority process, you got to compare it to the alternatives. The realistic alternative is having judges update the Constitution. Really, the two plausible methods we have of constitutional change are having people amend it through our overly-restrictive amendment process, or I think the judges amend it through our Supreme Court, which is picked by a process we know all too well. On average, we should expect that amendments that have to get a broad consensus from the people will be better than judges making stuff up that have to get five, that just have to get one of Justice Barrett, Justice Kavanaugh, Justice Roberts to believe in them, or whichever justice you want over time. On average, it beats judicial updating. That's the other argument.

Adam Chilton: Okay. So I think I might have understood the first argument to be the second argument, so what's the difference? 

Will Baude:    Okay. The first argument is just to say the process... Once you look at the process as a whole, including amendments, it's not deeply flawed, it's pretty good. It's not perfect. It has problems. The problems work out over time. The process is pretty good, and so on average, it leads to a pretty good Constitution. Not the best Constitution, but not a terrible Constitution, and there are lots of terrible constitutions. That's argument one, and then the second argument is, let's focus on how bad it would be to have judges do it.

Adam Chilton: Got it. Okay. Let me go back to argument one for a second then, now that I understand the difference. Okay, within this, since we've had something that looks like closer to full political participation, so women, minorities, religious minorities, ethnic minorities, et cetera, a variety of different populations having... And also the young having greater rights to participate in the political process. Let's say, post-1960s, post-Civil Rights Era, post Vietnam Era, where we expand suffrage to a variety of groups and are more serious about dismantling Jim Crow. Have we been able to have any amendment of something of real substance since then?

Will Baude:    I mean, I think at each stage, yes. It's sort of a... You might say it's sort of a virtuous circle, right? We get the Reconstruction Amendments and African American voting rights, and then after that we get progressive amendments, like the income tax, which is really important and direct election of senators. Then in turn, you get things like the right of women to vote, then that in turn gets you the right of young people to vote. I mean, the right of young people to vote, people ages 18 to 21 was only 50 years ago, and we haven't done much amending since. I think we're in a kind of amendment lull at the moment. But I think you could look at it and say it's a virtuous circle building up, but maybe the worry is we're petering out instead. We've kind of... We're amending it in less and less important ways, and we've kind of plateaued. We've reached peak Constitution and that's not good enough. We're in trouble.

Adam Chilton: Yeah. That's my concern is that I'm really not... So, this argument as I understand it now, this instrumentalist argument is that if we wanted to change the Constitution, we should put our faith in the amendment process, and that that's the correct avenue to do it. 

Will Baude:    Right. 

Adam Chilton: And that the process that's been produced is a relatively good one. I'm just a little more skeptical that's it's a viable process. Once we have full political participation and full political rights that we can ever get the kind of super majorities and sustained support for something to amend the Constitution, that would be quite required to fix some of these falls.

Will Baude:    So, this does get us back to the second argument, the last argument again, which is, I think they'd say... And the reason it seems like that is because now we have so much judicial updating of the Constitution. There's so little demand for constitutional limits now, because everybody knows if you want to get the Constitution changed, it's easier to just try to win the presidency and the Senate long enough to get a few new Supreme Court Justices. So why bother with amendments? If you don't like Roe versus Wade, why bother with an amendment to overturn Roe versus Wade? Easier to just try to put some justices on the court and vice versa for whatever else you want. Right to same sex marriage or what have you. They'd say, that just brings us back to, how does it compare to the alternatives? And the real question is how do we feel about judges making it up instead?

Adam Chilton: Right. I get that.... Part of the argument here is that is to say, if we were to get rid of judges being not originalists, and judges were to issue some hard decisions that were done in an originalist way, even if it went against those justices' political preferences and say, "Look, I might support same sex marriage, but that was not consistent with an original interpretation of the Equal Protection Clause. Therefore, if you want this at the national level, you're going to have get the votes for an amendment." That would've created political support to get them through an amendment. It's this counterfactual world in which we didn't have the judicial valve, that we'd have a more robust amendment process. 

Will Baude:    Although we get some and not others, right? So, we could try to run the counterfactual of which... Of the 30 most of important Supreme Court decisions in the past years, which ones would we have gotten through the amendment process and which ones would we not have gotten? So, there probably would be... Maybe we'd be at Obergefell by now. Maybe not. We certainly wouldn't get Heller or Citizens United. I don't know what else we get... If it's to say the counterfactual world, the set of things you'd get in that world would better than the set of stuff that the Supreme Court gives us and takes away.

Adam Chilton: Right. I get that that's what they're saying, but one feature that's nice of relying on the Justices is that you don't have to believe that the Justices, that any set of five of them, or any particular moment in time that they're really competent, or really smart or that they make great judgements on this. What you have to put your faith in is not the Justices, but is the common law process. What's so absolutely brilliant about the common law and that has evolved to these sort of really smart legal systems and contracts and torts and property and private law, generally, is that the judges do make mistakes. And then when those mistakes are seen, that they can relatively easy rectify them, and they're able to evolve the law in these smart ways. If you were to just ask me upfront whether or not I trust a common law system or a civil law system, in most areas, the common law system seems to be a no-brainer, that it works better when we compare across countries. 

            And so you're now just asking me, would I prefer a common law or a civil law constitution? Common law is just a slam dunk better than civil law in general. So, why am I so afraid of this civil law, and what seems to be what the originalists want?

Will Baude:    I feel like... This is good. I feel like this is a little bit of a false dichotomy. I mean, even the common law courts in the United States over time have changed a lot in how aggressive they think the judges are in terms of their right to make new policy. 

Adam Chilton: Mm-hmm (affirmative).

Will Baude:    Second half of the 20th century, after legal realism and law and economics, common law courts are a lot more willing to be kind of policy makers. And then, the new judges come along and fix them. Before that, they were much more reluctant for some kind of... On both ideological and practical grounds, and we might say a lot of the evidence of the wisdom of the common law system was that older version where the judges did sort of evolve the law slowly, but not too much. And that's very different from a world where we're just governed by the California Supreme Court. 

Adam Chilton: Yeah. But this is just gets us to a meta common law argument, which is you're exactly right. The California Supreme Court went pretty far in a number of areas of law in the second half of the 20th century, and rewriting, for instance, products liability, responsibility to others, a range of doctrines. I think in many of those areas, there's now recognition that maybe it went too far too fast, and the common law can then adapt. So, it's not just the individual decisions that can change through the common law process, but also the attitude towards revision itself.

Will Baude:    Yeah, and so fair enough. So then, the other difference is the common law has two great feature that are missing here. One is the legislature is supreme on questions of common law.

Adam Chilton: Mm-hmm (affirmative).

Will Baude:    The court will often say this, they'll say, "Well, we're going a little bit out on a limb, but if people don't like it, they can always change it." 

Adam Chilton: Right.

Will Baude:    You don't hear that from the... The Supreme Court is not trying to help the amendment process in the same way. They're trying to take it away. The other is we have a bunch of different, the common law was more like an experiment. You have a bunch of different state courts issuing different things that gives you genuine diversity and experimentation among the courts. And we can see, okay, California's doing it well, New York is not doing it so well, et cetera, whereas all of constitutional law centralized in nine people. So, you lose the experiments, you lose the diversity, and I don't know if we would that common law looked so good if the Supreme Court made it all for the whole country.

Adam Chilton: All right, so I find the first argument pretty persuasive in that, yeah, it does seem problematic if nine people can decide something and there's no viable way to change what they decide. And if they say it's a constitutional decision and not a statutory decision based on statutes or some other source of law, that can be difficult because then we're just back to the point where we need the amendment process. They may be, as you said, sapping the political will for the amendment process to work. I agree that that is a real drawback. That's potentially problematic.

            Second on the part of the value of the common law process is the experimentation. I think that's one value, but you can have two kinds of variation. So, you can have cross-jurisdiction variation and cross-time jurisdiction. For instance, there's many countries that have common law forms of government, but they don't have states in the same way that we do, and their system can still work reasonably well. So, the states are just one model to think about common law, but it's not the only one. For instance, you can imagine the Supreme Court issuing some decision, letting it play out for some number of years, then saying, "Wow, we got that wrong," and then going in and changing it. Of course, they do.

            It doesn't always require the states to have the laboratories of democracy, so to speak.

Will Baude:    But it's a lot easier to tell whether you got something wrong if you've got somebody else with a different role you should look to. Now, people sometimes encourage the Supreme Court to look to other countries for this reason. They say, "Look, other countries have different rules than we do on the death penalty, or Miranda warnings, or whatever else," and that should be a clue to us. But there are so many more cross-cultural variations in trying to figure out what other countries to look to, whereas if you had a way that you could say, "We've got three different constitutional courts going. One for the north, one for the south, and one for the west or something, and they could each look to each other and see how it's working out, you'd learn more."

Adam Chilton: That's right. I assume no country that's as similar to the United States is the state of Illinois is similar to... If you had to pick one country to analogize from, that makes perfect sense to me. Agreed there.

Will Baude:    Right. I mean, if anything, this is a complaint people have about Federalism, is they now say the problem is that states aren't different enough. As everybody consumes national media, the amount of local variation in culture and political culture is just decreasing [inaudible 00:45:15]. So, it might be even more true now than it was in the past.

Adam Chilton: Got it. Okay. So, to make sure I understand this. The case for originalism, up to 2013 to be clear, up until the so-called positive turn that we'll get to, there's three main arguments that are advanced. The first is what we were calling the linguistic argument, which is the fried chicken argument saying the Constitution is a recipe, and just like other forms of written instructions, that the way to think about those instructions is to understood what the writer was trying to tell us, and to try to, as faithfully as possible, execute the directions.

            The second argument is an instrumental argument that the various political trade offs that have been made throughout history have been made through process of political participation, and even though flawed and incomplete, that that process produced these various compromises, and that we should prioritize those compromises along the way for instrumental reasons.

            And third, the third instrumental argument that's being made is the tyranny of Justices run amok, and how it's problematic to rely on their decision-making, and even if they are behaving in some common law way, it's a flawed common law way.

Will Baude:    Yeah. I think that's right. I guess the last thing I'd say is... We haven't talked to this yet is, these might all kind of add together, too. They might... Even if we've made them as independent arguments, but you might be able to fold them all together.

Adam Chilton: All right, so let me ask you this. All three of these things feel like debates that reasonable people could disagree on. That is, you could disagree on whether or not the Constitution should be understood like a recipe or some other text that we allow the reader to interpret differently as historical conditions evolve, that we can disagree about the value of the amendment process and the political participation that produced our existing compromises of government, and you could disagree on the value of judicial decision-making. But all of these are debatable topics that people could disagree with. What I'm surprised that these three arguments, however, have less of a normative piece than I thought that there would be. 

            And what I mean by that is that I feel often, as if originalists imply in public discourse, and perhaps not in the academic papers that you write, but in public discourse, the judges that testify in front of the Senate when they're trying to get confirmed, or when they write these things in the Supreme Court, will say things as if... "The only legitimate way to interpret the Constitution is originalism, and that anything else is a travesty, et cetera." And it's just loaded in this really normative way, as if there is a right way and a wrong way, as opposed to depending on your views about the political process, this might be a preferable outcome to some other system.

Will Baude:    Yeah. So, I know the phenomenon you're talking about. I think there is this funny difference between the way originalism is talked about in academic discourse, and the role it has in political discourse, but I don't think it's at... I guess, as you walk through these arguments, especially... Put all three of them together. This is the way we normally read texts, this text in particular was adopted through a process that makes this a sensible way to read it, and the alternative is ignoring the normal principles of the structure of our government and the written word. Which [inaudible 00:48:48] just makes stuff up. I could gin that up in a more bombastic way to say, "We really are talking about judicial tyranny versus originalism, and those are the only two options."

            And then, it's not as surprising that people who pick judges are not super excited about picking people who say, "Oh, I want to be a judicial tyrant." And you got to say, "No, no, of course I would never want to be a judicial tyrant. I would want to do something safe like originalism."

Adam Chilton: Yeah, I guess that's right. Now, let me ask you, given that these are the arguments that you're putting forward, is it your view on the question that there is a right answer to this? That we're locked into a... I mean, obviously you have a view that originalism is the right answer, but what I mean by that is that this is deterministic in some way. That we have no choice but to be originalist here, and that is the system that we have.

Will Baude:    I don't think these arguments by themselves are enough to give us no choice. I think by the time we get to the positive turn, it maybe more complicated, maybe I'll take a harder line, but I guess I should... Two things. I guess the fact that something is subject to reasonable debate doesn't mean there's not a right answer. So, you take ethics 101, and I hear people talk about whether deontologism or utilitarianism is the right answer, and anybody who cares for these things knows you could be either... There are good arguments for being utilitarian and there are good arguments for believing in fundamental rights that are not subject to utilitarianism. It's something to debate.

            But once you've bought one side of the debate, you often have really bought it. If you really think that no amount of innocent lives are worth torturing, killing an innocent person, you really believe it and you'll feel it with very strong moral fervor, even though you say, "Yeah, I know that when I was in college I heard arguments for utilitarianism and they were plausible, but they're wrong and this is wrong." So, I feel there's just something funny going when we have a debate over methodology at a high level. Once we've picked a methodology, it's not surprising that some of the things seem really important to you.

Adam Chilton: Yeah, I guess. It feels exactly like that, which is... What I mean by this is that I think there are some questions where there is a fact of the matter. So, what is the temperature today in Chicago? There might be some measurement error in the way that we measure it, but there is a right answer. We can just solve that question, is climate change occurring? We might not know the right answer, but there is an answer. There's a fact of the matter, of what it is. And there might even be, the fact of the matter about historical facts. What year Columbus landed in the Americas, or something like that. We might get the historical record wrong, but there is an answer to that question.

            But then there's the kind of topics you debate in college philosophy seminars, whether or not we should divert the trolley problem. Some people have decided in life that they're allowed to yell at you as much as they want, that there is an answer to that question, and originalism just feels the same to me. You've got a preference over the way the Constitution should be performed. You think it's the better to interpret the Constitution, but is it the way to interpret the Constitution, and anyone else that doesn't interpret that way has got it wrong? That's where it leaves me behind, in that... 

Will Baude:    This is another time it's good it's not a debate, because I'm kind of with you. I think these arguments are sort of founded in political theory. Look, there are people in political theory who believe there are right answers to questions of political theory. More power to them. I'm sort of with you in thinking a lot of these sound suspiciously contingent to me. I can tell the story for why you'd believe it, but it sounds contingent and require more data that I don't have and that we've already gotten into some of this.

            So, the thing that gave me pause at this stage is partly the comparative point. How many countries there are that have constitutions and don't seem to have that originalist practice towards them at all. [crosstalk 00:52:26]. And there are various... There's good papers about this too, and so Canada I think, for awhile had two prominent originalist academics, and now they lost them both because they both became judges. So, that's interesting, but still, they're an obvious minority. Australia had a brief originalist streak, but then Israel, nothing like it. France, just over and over again.

            That's the part that kind of made me think, to your point. If this were just some true feature of constitutional law, it's really weird that the United States is the only place that's found...

Adam Chilton: The only people that figured out is a set of conservative white people in the 1980s in America? Yeah, that does seem really weird to me, too.

Will Baude:    Not just that, but yes. That made me think there's something missing here. Either the arguments don't work, or there's more to them. This will be the positive turn, which we'll talk about in another week. We have four minutes left, so should we see if anybody else wants to ask us any questions?

Adam Chilton: Yeah.

Will Baude:    Does anybody else have something in the chat, or...? Okay. To return to a more linguistic argument. What's wrong with this two-premise argument for originalism? The job of the judicial branch is to interpret, not make the law, and the identity conditions of the text is fixed by the original political meaning of the text. Therefore, judges should interpret the Constitution based on its original political meaning.

            Okay, this is sort of a blend of argument one and argument three, which I think is an important and common way of blending them. The judges should interpret, not make the law, that's a basic principle of separation of powers. And once they're interpreting the law and not making it, that means we're reading the text like a fried chicken recipe, in accordance with the original political meaning of the text.

Adam Chilton: Yeah. I mean, if we had a Constitution that was full of rules, then maybe I can get on board with this. But we intentionally have a Constitution that's full of standards. So, the entire ballgame is what does it mean by due process, or equal protection? And those are terms that are intentionally vague, and therefore... And that weren't, I don't think, fixed at the time that those words were written and were left intentionally vague, because people realized we can't think through all the possible contingencies that will happen in the future.

            People thought that in the future, we'd come up and run into problems that they hadn't thought of, so they write texts that can accommodate that. So, being non-originalist is, I think, using the tool of the Constitution as it's intended. Just premise one, the idea that the judicial branch is just interpreting in some strict way, feels like the same kind of... To me, just totally implausible argument that... Like, when John Roberts, as he's just calling balls and strikes, and the idea that that's even possible is absurd. That alone, that that's what we intended, so just baking it into premise one, to me, seems problematic.

Will Baude:    Okay, so I think this should be one of the things we talk about next week, when we talk about objections to originalism, because I feel like you're sliding between two different points. One is...

Adam Chilton: Probably, yes.

Will Baude:    The text of the Constitution itself doesn't want us to be, or the original meaning of the Constitution doesn't want us to be originalists. It's leaving things in an open-ended fashion.

Adam Chilton: Yeah. [crosstalk 00:55:21].

Will Baude:    The other thing is, whatever the text wants, judges shouldn't care about it. The judge's job is not to enforce the text, but to make law. Both are plausible, I think one is the common law argument and the other is a kind of argument specifically about the Constitution, but they take you in slightly different directions. Because I'll respond to one of the arguments by saying, "Well look, was this principle, was the Equal Protection Clause intended to be vague? Or was is a well-addressed term of art that goes back to Blackstone, that everybody knew exactly what it meant, and we've just forgotten?"

            The other argument will get us back into the, how good is it for judges to make things up or not? But being, when we try to focus on where exactly is the problem? Is it, in a way, is it premise one or premise two? I think that'll be helpful. So, next week, I think on Thursday, we're going to talk about important objections to originalism. Adam is going to lead the way with some of the ones that... You've heard a lot, bits and pieces of them so far, but he's going to try to make me more sympathetic to a lot of them than I have been in the past, and then week three we will turn to something new.

Adam Chilton: Thanks, everyone.

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 think is misunderstood. Finally, if you're looking for more current SCOTUS talk, check out Divided Argument, an unscheduled and unpredictable Supreme Court podcast, hosted by me and Dan Epps.