In Episode 6 of Deep Dive, Will and Adam discuss the oath judges and public officials take, whether or not it’s still relevant today, and what the oath has to do with originalism. They also argue about an analogy reminiscent of the SAT: Is it constitution:United States, or is it protect and defend:United States?
In Episode 6 of Deep Dive, Will and Adam discuss the oath judges and public officials take, whether or not it’s still relevant today, and what the oath has to do with originalism. They also argue about an analogy reminiscent of the SAT: Is it constitution:United States, or is it protect and defend:United States?
Recorded February 15, 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 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 back, Adam, everybody, for I think, our next to last episode of this deep dive into originalism.
And I thought it was a good time to talk about oaths. The oath that government officials take to uphold the Constitution and what it means. And it's sort of funny, this is actually one of the things that inspired us to do this little interchange. Last summer, for reasons that I still don't totally understand but I'm hoping we can talk about the second half of the episode, a bunch of people on the internet got very mad at me and other people about the idea that the constitutional oath has something to do with originalism or has any kind of important consequences whatsoever.
Adam and I wrote some blog posts about this and briefly got into this discourse before both of us ran away. It's part of what made me think it'd be fun to actually sit down and try to talk through all this stuff. So maybe we'll just talk first about what relevance the oath has, and then we'll go from there.
Adam Chilton: Yep, no, that sounds good. And the thing that I've learned from HBO is that the penultimate episode is always the best. So a lot of pressure on you Will to drop some originalist bombs for this.
Will Baude: Well, okay. We'll see how many people survive the episode.
Adam Chilton: All right, so what are the steps in the oath argument? What exactly is the claim here?
Will Baude: Okay. Let me start with the oath. Judges take an oath to uphold the law and apply the law in deciding cases. Let's focus on this for a minute. And so the oath argument is a hook for the importance of the positive turn. Positive turn, remember said we should care a lot about what method of constitutional interpretation is our law. So I don't know what order to put the steps in. But I guess I'll do it this way.
Judges take an oath to apply the law when deciding cases. Therefore, we should care about what kind of constitutional interpretation if any, is our law. If originalism is our law, as I think it is, judges are therefore required to be originalists. Now, obviously, you can disagree at step three, and lots of people do. You could think something else is our law. That our law is common law constitutionalism or our law is something that we just called judging, but it's very different from what a lot of law professors want. But whatever plugs into step three, whatever is our law, judges are required by the oath to do it. So the oath helps like reinforce the normative stakes for the positive turn.
Adam Chilton: Got it. Okay. So, and the claim here, just to be clear, is not that originalist judges have taken an oath to be originalist, or certain judges have taken an oath to be an originalist. The claim is that every Supreme Court Justice, every circuit court justice in the United States, every federal court, District Court justice, and presumably a range of state court judges, I don't know the state court specifics, including their oaths that they're going to uphold the Constitution and the law too.
Will Baude: Yes, in fact, the Constitution specifically says, all state court judges have to take this oath too. So they specifically call it out in the text of the Constitution.
Adam Chilton: Got it.
Will Baude: And so I think... Really the argument has those two steps. That the oath is an obligation to uphold the law. And then that the law is originalism. And maybe the second step is controversial. The first step, some people disagree with that, too. But the first step, I think, should be uncontroversial. But maybe one thing you're hinting at, is that implicit in this argument, so maybe it's another step, is that when you take the oath, it's to some set of understandings that are bigger than yourself.
You could have a view that all the oath requires you to do is to do what you think you should do. So that everybody takes an oath, just takes an oath to apply the Constitution however they want to, and therefore that everybody's oath is different. So one claim is that that's not true, that the oath is supposed to be some kind of like shared, cross cutting thing, whatever it is, that cuts across everybody.
Adam Chilton: Well, I guess we can either say that this is a step one problem or a step three problem. But part of what you're saying that I think it's so controversial, when people are taking an oath, that it is not possible to have different conceptions of what the correct method of constitutional interpretation or the law is. That there is a pledge to a specific idea, that is the right way to interpret constitution. Now either we can say that that's... That everyone's oaths are different or that the oath is all the same. But it allows for a plurality of views about what's appropriate in a given case or the way to think about this. But either way, I mean, I think this fidelity to a specific view is quite an extremely bold claim.
Will Baude: Okay, good. So now it's time for me to walk it back, just half a step. So it would be possible for people to have different sort of... For the oath to allow different interpretations, as long as that's itself something that everybody agrees on. So you can have a system in which what we mean when we say the oath and the law is, these three methods of interpretation, precedent, text and a purpose are permissible, in some mix that the oath doesn't speak to. But everything else is forbidden. That will be a plausible version of the oath. But what will be doing the work is, again, some sense that comes not for the individual judge or the individual oath taker, that that's our legal principles. So you're still hooked into whatever it is that that's the societal agreement, which can be more or less demanding.
Adam Chilton: Yeah. In fairness, my guess is that 99% of judges, and law professors and lawyers thought that's exactly what was going on until I don't know last summer when you originalist were like, "Hey, guys, we got you, you've all actually pledged to our side."
Will Baude: That there was some general pluralism that they were swearing into.
Adam Chilton: Yeah.
Will Baude: Yeah. So maybe so. So again, I think the most important thing the oath is doing here is explaining why this whole positive turn was a worthwhile inquiry. Why we should care whether something is our law, and what our sort of shared stakes are. And so the answer is like, the oath shows that we all care. Now, maybe the conventional wisdom is correct. And actually, our law is this kind of like pluralism of three or five things. And, okay, if so fine. Then the positive turn still matters and I'm just wrong about what our law is. But either way it shows, that's an important inquiry. And that if I were could show or write about it, something would follow. That's the work I want the oath to be doing.
Adam Chilton: Got it. Okay. I mean, it does obviously create a huge amount of stakes, if you can show what the law is and then use the oath to hook it to... That you have no choice or you are doing something impermissible if you don't buy into this now, or you don't use this in your decisions.
Will Baude: It's goal, I think is just to raise the stakes and you can't... There are arguments real people make and maybe they're not worth spending time on that says, "Look, oaths are meaningless, because there's just the right thing to do. Whatever the right thing to do was before you took an oath, and the fact that you promised something, it doesn't really matter if the promise is, it shouldn't change what the right thing to do is." That's one argument people make.
Or another, it's like, especially popular among Catholics of a certain vintage, that you're allowed to have a sort of mental fingers crossed. When you take an oath, say, "I swear to support the Constitution." And you say in your head, as interpreted by me or Ronald Dworkin, or something that changes the meaning of the oath. I think those are wrong. I think most judges don't really believe those. And so maybe that's not worth talking about?
Adam Chilton: Yeah. My guess is that there is zero people that think what they're doing when they issue judicial decisions is anything other than upholding the law.
Will Baude: Okay, good. And I guess maybe it's also time to sit back. So that's I think the modest case for the oath. This is a hook for the positive law theory. It doesn't add anything to the case that originalism is our law, but it raises the stakes. And so now, what used to be a kind of weird, cute, philosophical theory now has some normative byte. There are people originalists, who might be right, who want to go further, who want to actually get some affirmative argument out of the oath.
So one of the arguments goes, "Look, when people take the oath, they, among other things..." You can find lots of quotes where they say things like, "They're taking the same oath, the judges have always taken to uphold the Constitution." Or especially with presidents. You find a President will take the oath and say, "I'm now taking the exact same oath that George Washington took back in '79." And if the content of the oath is really... If it's true, that they're taking the same oath other people have taken, so the content of the oath has always been the same throughout history, then that suggests that the content of constitutional law has been the same throughout history, which suggests originalism.
Adam Chilton: Now, come on, that argument doesn't give you any purchase. Imagine that throughout history, that what judges have done is applied some combination of precedent, common sense, originalism, whatever, to come to whatever they think the best interpretation of the Constitution is, because they're facing new problems that are indeterminate. And so I don't know when, in 1890, 100 years after the Constitution, we get the first non-delegation doctrine case.
The judges are trying to figure it out. And part of what they think about is what James Madison thought, part of what they think about is what Montesquieu thought, and part of what they think about is what's going to break the federal Government. And those are the considerations that animated them in 1890. And in 1990, and every year since when judges have to figure out what to do about recess appointments, or modern non-delegation cases, those are the same sort of animating considerations.
And so the fact that you can easily be thinking like, I take the oath to try to help steer our country in this path that's constrained by the Constitution, but it has to take an abstract 7,000 word documents to solve modern political debates, and got to work it through. The fact that it's been the same and go either way. And in fact, it's trickiest for originalists, because originalist is a theory that's gotten more play recently. If you were to say, what's the constant theory of constitutional interpretation, where there's the biggest break, it's originalism, and not non-originalism. Whatever the rest of us are up to.,
Will Baude: Maybe, this is where actually the positive turn plus the original law turn look good together. So it's the original law patch is just whatever it is, we've always been doing, keep doing it. Whatever the law is... So if it's true, that it's always been a mix of common sense text and James Madison, keep it up. Then I think we're on the same page. And maybe we shouldn't call it originalism, we should just call it judging, or something, I'm happy to give it some more neutral label that helps it sell better.
But if it were the case that they've always been in the same thing, it seems like this would help. It seems like the place where it's going to get tricky if there's been some change. If for the first 100 years common Sense was strictly forbidden, or I suspect maybe more realistically, the for the first 100 years common sense was never allowed to trump let's say, like the clear text and intent to the framers. And then over time, we started caring more about common sense and less about text. That's where I would start to get tricky.
Adam Chilton: Yep. But the fact that the oath is the same, doesn't seem to get any purchase to me on whether or not therefore the thing that they're doing can have some amount of evolution.
Will Baude: Well, if it evolved enough, we'd say the other is not the same. If our conception of the Constitution had totally evolved from like it being a written document to being like a unwritten, nothing to do with the text, it'd be weird that we said the oath to the Constitution was the same.
Adam Chilton: No, that's a trash argument too. No, think about it this way. Imagine that, like George Washington took an oath... Not imagine, he did take an oath to protect the United States. And what he took an oath to protect is 13 largely agrarian colonies that had slavery and only men can vote or whatever else. And he said I will protect this. And then Joe Biden takes the same both 230 years later, more whatever it is, and he takes an oath to protect the United States. But what the United States is has evolved dramatically over that time. And we all understand what he means by his oath, in the same way you could take an oath to protect, uphold the law or the Constitution or whatever else. And our conception of what that entire entails and what that means can have evolved over that time, too.
Will Baude: So that all seems right to me. But notice that the evolution of the country has evolved in like the way that even originalist, original law, originalists think is okay, which is, we added states to the original set pursuant to the original rules of Congress submitting new states. It's true we've added a lot, we've used the rules.
Well, I mean, the hypo, this might be more of a sci-fi hypo would be, what if the United States was attacked, say we lost World War II and had to largely give up the continental United States, and the rump US government was like now stuck on some island in Cuba. And we still called ourselves to us the way that like, somebody Taiwan might still call themselves the official Chinese government. We still said we were the US even though now there was no, like continuity between us and the original US. It'd be weird for the president of like the government in exile in Cuba to still say he's president of the same country as George Washington.
Adam Chilton: Yeah, but I wouldn't be at all surprised in that scenario that people still take the same oath. You just don't change the oath. It would be interesting, whatever the government after '46 in China didn't Taiwan, but I bet they don't change it. Here's the thing that... You're focusing on the word United States to draw a parallel to the word, the Constitution or the law.
The thing that you should focus on is the word protect and the word uphold. That's where the evolution comes in, in large part. Which is to say that what it means for Joe Biden to do his best to protect the United States is just different than what it meant for George Washington to do his best to uphold the United States. In part that's different technology, different problems, whatever else. But we also just have different conceptions of what might be a threat. So we now might think that protecting the United States, theoretically, should mean elected officials that want to like run away white supremacist lynch mobs or something. Whereas maybe that was seen as fine in 1790 by the powers that be. And so that notion of what it means to protect the country can evolve, even if you're taking the same oath.
Will Baude: So I think the question is how it evolves. So thinking back to judges again. Suppose whatever the mix of things you think are currently part of the law is, it's not originalism. Common sense, text, James Madison. The question is, if you're a judge, can you add something to the list? Or does the oath stop you from adding something to the list? Does the oath say, even though you now realize you wish that the list included helping your political party in defeating the evil other political party or whatever it is, that you can't quite shoehorn that into common sense or text or Madison. Are judges is allowed to add stuff?
Adam Chilton: Are they allowed to add stuff to the list of things that you can consider when making decisions?
Will Baude: Yeah.
Adam Chilton: Yeah. I guess, although, I mean, presumably, that there's some limit to what you could add before, you're no longer upholding the Constitution. If like the far right wing trope that there was like an army of people trying to enforce Sharia law in the United States were true. And some judge gets to the Supreme Court, and then immediately says, "Aha, my goal all along is to force Sharia. And this is the supreme law of the land that I will do everything I can to strike down any law inconsistent with it." That is now going to be a break. That's probably too far.
And to be clear, it's not just because of Sharia, you can imagine other versions of breaks that are just too far. But in the same way, being non-originalist doesn't mean that there's nothing that's out of bounds. It's just we mean in using the conventional tools of judging.
Will Baude: That's why if we can agree that the oath restricts you to the conventional tools of judging and stops you from adding unconventional tools, then I think the oath has done the work it's supposed to do. Then the positive turn and the sort of earlier discussions we've had are about what are those conventional tools, and how should we understand them?
Adam Chilton: Yeah, well, I'm curious on this. So I would wonder what the first time that the Supreme Court... Well, first off, here's a very basic question, I actually don't know the answer to how old are amicus briefs? They go all the way back?
Will Baude: Oh, certainly, Amicus arguments go all the way back. Because like, a more common version is like people were standing around in court, and then they-
Adam Chilton: Be like, "I have thoughts."
Will Baude: Yeah.
Adam Chilton: Great.
Will Baude: I don't know when the first amicus brief was filed. That's a great question.
Adam Chilton: Presumably, we, not always and whatever. But it's not crazy for the court to take that in consideration. But that was not going to be even my example. Which is, I assume that judges have always cared about empirical evidence in the broad sense. If someone says, "This is the way that crops are rotated," or whatever, 250 years ago, that's relevant to the way that you think about the interpretation of different laws.
That is how the world works. What's the implication going to be of different decisions, people have always thought about that and made consequential arguments. But over time, the quality of empirical evidence is waxed and waned in various ways. And courts clearly now in many decisions will rely on data that the Solicitor General's office will give them or for instance, in the affirmative action cases where they're like very curious about amicus briefs from like, General Motors and the military and Harvard College to tell them about the way that they achieve diversity. And so there's going to be some evolution in the way that they are thinking about that evidence. And so is that kind of adding something to the list of what we think about? Now, sometimes you get a study on these various topics?
Will Baude: I don't think... I mean, I think the way you put it is right, it's they've always cared about the... The underlying thing they've always cared about is the consequences in the world or something. And they do have a new way of finding it. It seems they can do electronic computer searches now for old cases, rather than only look at the books. But I do think to what extent to things like consequences have a role is a method. And James Madison did say, totally fine to consider the consequences when the permission is ambiguous. In fact, it's required, but if the provision is clear, then you can't consider the consequences.
Adam Chilton: Yeah, I mean, that seems right to me. We've used this example before. But if someone were to come along now and say, because of our education system, being 35 which is the age to be President of the United States, or 30, to be a senator, we should redefine that based on human experience years or something to be lower or higher. I don't know which way it would cut depending on what kind of argument you want. But we could either imagine saying 30 year olds for president because the smartest 30 year old knows way more than someone knew back in the day. Or we could say, we met 35, because that was like two thirds of your life. So now we got to kick this back to 55 or something. But that's the kind of argument where I think the provision 35 years old is, as we've talked about, is not ambiguous.
Will Baude: And that means the oath would not allow judges to do it.
Adam Chilton: Yeah, can't do that.
Will Baude: Yeah. I mean, I think the one that might tempt them will be the Senate. Somebody would come and say, "Look we've grown to realize the malportion is really bad, and that the malportion of the Senate is really screwing up the country in various ways. So even though it's clear that every state gets two senators, the time has come for you guys to get rid of this role." I think that's out of bounds.
Adam Chilton: Yeah, I can't imagine anyone issuing a decision, like from the Supreme Court that said, "All right, we issued Baker v. Carr, in," whatever it was the 60s or something, "Saying one person, one vote. And that precedent has evolved over time. And we've taken it more and more seriously. Baker v. Carr standard. Back then we meant members of Congress and stuff. But now we think that it should apply to the Senate too, and that this idea has finally reached its time. And now we think California gets whatever the number is, 40 senators or something to deal with this." That seems out to me. That's a clear provision. You can't just do that.
Will Baude: Yeah, me too. And it's interesting, because I think, unlike the true common law, Constitution view of the Constitution, that shouldn't be out. That view would say, of course, that rule is binding initially, but the farther and farther you are from the founding, and the more things have changed, like at some point, that rule will be up for grabs, will be the common law constitutionalist view. And at least that extreme form of it seems like it's out.
Adam Chilton: Yeah, it is interesting in that it's tough to think how you square some things with that rule being out. Because that seems clearly out to me. The idea that the Supreme Court can redefine the number of senators per state. And I can't think of many opinions where someone should be thrown out of the Supreme Court over, perhaps the... Because even the anti-canon cases, even the Korematsu's and Plessy's and Dred Scott's of the world. I don't know if anyone ever made this a serious argument that these people needed to be immediately impeached. I mean, in part because they had large majorities for those decisions. I guess not all of them.
Will Baude: I suspect, people in my common law class this quarter will know this, but I suspect that if Taney had not died before the Civil War was over, there might have been a move to impeach him. There was a weird, like 19th century cancel culture movement, when... Because after he died, the Senate traditionally appropriated money to create a bust of him to go in the Supreme Court building, which they'd done for every Chief Justice before. And when they moved for the money for Taney, Charles Sumner said, "What, no way we're appropriating money for somebody that's evil." And then actually they refused to create the bust for like, a decade, because Taney decided Dred Scott and they didn't want to, like give them a statue, because that would imply that it would endorse his views.
Adam Chilton: Got it. So first off, that's great to hear. And also, this feels like a super classic Will Baude move, which is the pincer argument of originalism, which is like some people are attacking cancel culture from one direction and then you come along and say, "Actually, we've always had canceled culture. So this is okay. For originalist reasons you're allowed to tear down statues or not put them up in the first place."
Will Baude: You know my moves at this point.
Adam Chilton: Yeah, no, I like that, though. I hadn't heard the Taney articulation of this. Yeah. Okay. All right. So I didn't know that about Taney, that's good.
Will Baude: But I'm with you. I mean, so and here, are a couple threads-
Adam Chilton: Where I was going to go on that, so if there were to be a majority of the Supreme Court, where like 5-4 is California gets 40 senators, now, the move to repeal them would be real. Just immediate, this is too far. And these people... Presumably liberal judges, the Conservatives would be like, this is way outside of the bounds of what we ever allowed, and we're going to get them off the court.
Will Baude: Yeah.
Adam Chilton: And it wouldn't be a crazy view.
Will Baude: I don't know, that it would have to be 5-4. I mean, so even if there was one judge, for a while, there was one judge on the Court of Appeals who thought that Puerto Rico was like legally entitled to representation in Congress now. Not that we should make Puerto Rico a state but that like under our current law, it was required the Puerto Rico have representation. Now even he went to the trouble to try to ground it in like various treaties, we maybe signed or something.
Adam Chilton: Let me ask you this is that more or less plausible of an argument than the West Virginia is not actually a state argument that some originalist like.
Will Baude: I think, less plausible on its face. With West Virginia the thing that makes it so implausible is that we've been doing it for so long. And so even if West Virginia was unlawfully admitted, maybe there's some principle by which the statute of limitations is run or something.
Adam Chilton: Got it, by the way, can you... I'm realizing I just named checked that example, for funsies. But do you remember the specifics well enough to explain what the claim why West Virginia is not a state?
Will Baude: Well, so nobody actually made... So there's an article by Michael Stokes Paulson and Vasan Kesavan called is West Virginia Unconstitutional. But in the end, they conclude it's constitutional, so there hasn't been anybody since the Civil War, I think who seriously questions the constitutionality of what's written here. It has two problems. One is the real problem, which is that West Virginia is created out of Virginia. And according to the Constitution, if you're going to create a state out of an existing state, you need the original state's consent.
So you can't carve California up unless California says it's okay. Mostly think of the government of Virginia did not actually consent because they were in the middle of civil war and they're not interested in them being carved up. The people who consented were a group of people who describe themselves as the government of Virginia because they were the loyalists, met in West Virginia, to give themselves permission to carve West Virginia off, then met and accepted their own permission on behalf of West Virginia for the carve off and then sort of carved the state off. So it's a really weird legal fiction.
Adam Chilton: Got it. Yeah, there's not going to be a lot of people making the, let's disenfranchise the state of West Virginia because we didn't appropriately listen to the secessionists in 1860 crowd.
Will Baude: You see why this document has faded. And it is... I mean, as dicey as sounds like much of the Civil War was conducted under this theory. Much of the civil war was conducted under the theory that the people committing treason could not speak for the state because they were traitors. And so various rump groups of loyalists, or the Reconstruction governments imposed by Congress were the real government of the state, which gets into democratic theory versus sort of liberal theory about what is the real government of the state.
The other problem is, the way the clause is written about creating new states, it has some awkward semicolons, which if you read them the way you might think you should read them actually say you can never create a state out of an existing state. The semicolons appear in a place where there's like, no state can be created out of his out of an existing state, semicolon, or made out of combining states without the consent of the legislature. So if you were not an originalist about semicolons, you'd think that you could never create a state of existing state. But it turns out the original meaning of semicolons was they didn't really mean anything.
Adam Chilton: You might think semicolons mean this, but actually.
Will Baude: They were just commas. There seemed to be no systematic difference.
Adam Chilton: Got it. Okay, so semicolons are allowed to evolve, but the way that we think about the Constitution that's set.
Will Baude: No, the point is they don't evolve. If you look at the semicolon, and you read it as a modern textualist, you'd think, "Oh, this is a break between one clause and another clause." But you shouldn't do that. You should read the semicolon the way it was meant at the founding.
Adam Chilton: Now we're like five asides deep. But let me ask you this. So within linguistics, the primary debate, or I'm exaggerating now, I don't know linguistics well enough to know if that's true. Within linguistics, there is a debate on what to think about what is language, and what is correct use of language. There's people that are descriptive and think that like, language rules don't evolve and shouldn't evolve, and there is right and wrong. And others that think when we're describing the English language, that what we're describing is the way that people actually speak.
And this is obviously tricky, because there must be some ways that you can use the English language that are incorrect, because they don't communicate meaning to people. But if they communicate meaning, and people all understand what we're saying that that's fine. Now, are you the kind of person that goes around thinking that we got to impose the grammar rules in the way that people actually use our language? That's not enough, not acceptable?
Will Baude: No, I'm a total conventionalist about this. So I think language is just a matter of convention. And if the conventions change it doesn't matter, whether they're the right dimensions or not, except for the use of literally to mean figuratively. A hill on which I will die.
Adam Chilton: Unless you do that one.
Will Baude: I said, the one exception is people who use literally when they don't mean literally. They say, "There were literally four feet of snow outside." And they mean, there was one foot of snow outside, it just felt like a lot. That's the one convention that I've...
Adam Chilton: We can all like be "Get off my lawn," about our favorite or least favorite way in which the language evolves. I mean, you've already lost that one, and you will lose that one. But you can be yelling at students for decades to come over it.
Will Baude: I will go down fighting and marking off on my exams.
Adam Chilton: Right. Yeah. Okay. So I strongly think this and agree with you there and think that people that take the other view, that the reason to hold the other view is so you can like enforce class hierarchy, basically. And point out people that say phrases that you think are inappropriate or poor English, et cetera, and judge them as a result. But because there aren't great practical arguments to think that language should be different than what is useful for communication.
Will Baude: That's interesting. So I guess I don't disagree with that, I do think you might want to be a prescriptivist. Because some languages are better than others at doing things like being clear. And so language could evolve in a way that makes it harder to speak clearly. And that would be a loss. So I can imagine wanting to try to maintain some functions of your language to make it easier to be clear, but if language changes it changes?
Adam Chilton: Right. Yes, I can be on board with the view that the accurate description of what English currently is X. However, guys, let's all go back to why because the more exceptions we bake into the rule, the harder it is for people to learn this language. And whatever. Like that seems reasonable to me. But that's a slightly different view.
Will Baude: Yeah. So just to pivot back to law for a...
Adam Chilton: Yeah, that would be useful.
Will Baude: So I have this view of a lot of... I'm actually not really a person who believes in like history and tradition in any arena other than law. Really. It's just that I think law is, maybe because of that because everything is so constructed and so contingent, I think if you want to have a stable legal system that does the things the legal system should do, it's really useful for the legal system, to not behave that way. And to have some rules and to make law a little bit more stable than things like how people talk.
Adam Chilton: Right. So this is where I just, I'm not sure that I agree with you in that, when you first get to law school, the first day of 1L. I think that so many people have this view that you're going to show up and people are going to teach you the law. And there's going to be an answer to questions. And it's like chess where there's like this piece can move this way. And that piece can move that way. And if this scenario comes out, here's how you resolve it. And then you can just have a fully solvable game.
But the scope of human interactions that we're discussing and trying to cover, it's just not possible to map out with any realistic code. So if you think of towards the law of personal injuries, all of the different ways in which people can do stupid things, for either intentional or unintentional reasons are just so huge, that instead of trying to write out what happens when someone crushes their snowblower into someone else, we just need to have these really general rules. If you don't behave like a reasonably prudent person you pay. And you're the one that's at fault if there's then injuries as a consequence.
And so when students will say, "But what's the law in this scenario?" And you have to be like, "I have no idea what the law is, in this scenario, some finder of fact is going to have to make a determination, and then we'll go from there." And then when the next snowblower case comes along, that finder fact will have to decide are we better served by assuming that we've already settled all snowblower cases, or redefining the first case to say, "Ah, that was about snow blowers and cars. And this is now about a snowblower and a dog, and so therefore, it's totally different." And that seems like a perfectly sensible way to manage a legal system. And in fact, the reason I'm sure it's sensible is that all of the best legal systems do it.
Will Baude: So what they don't do, and what's important, though, is that they might not be chess but they're not Calvin Ball. I guess that's probably a dated reference. But the sport that used to play it in the now much lamented, comic strip, Calvin and Hobbes, who's chief rule was you can make up whatever rules you want. And there are no rules about rules you can make up. So at every turn, you could just like, have a rule if you wanted to. It seems important to me that laws not like that. And I think we're on the same page about nothing like that. And we just don't agree on how much... Whether there are five principles or one.
Adam Chilton: Yeah, I think that this all boils down to you're uncomfortable with uncertainty or gray areas or something like that. Because yeah, obviously, if it were the case that someone recklessly crashes their snowblower into their neighbor and injures their neighbor, and some judge came along, and said "You know what, actually, hey, neighbor, you're richer than the person that crashed a snowblower into you. And because you're richer, even though you did nothing to be wrong, and we're no way and fault how about you pay them, and then they won't have to shovel their own snow." Or whatever the reasons are to redistribute through the court system.
That's going to be overturned. And if it's not overturned by the circuit court, it will be overturned by the voters probably. And every few years, there's some example where some judge gets over their skis in one of these cases. And the vast majority of time, if it's not overturned on appeal, it is overturned by the state legislature or even Congress. And that seems to work too. To make sure that we're, like moving forward, evolving our Calvin Ball, but that the game changes.
Will Baude: Yeah, I don't know, [inaudible 00:33:30] my personal views. But I do think those cases are like the Senate. The fact that the Supreme Court can't abolish the Senate are correct. And I guess I just think when you really think about what's going on there, something important is going on. But this is why I get so confused. So can we talk meta debate. So this is more or less where things stood last summer. And then like Adrian Vermeule was trying to like convince people to adopt his own new crazy theory of constitutional interpretation. And some people said, "Well, the oath means we can't just have judges adopt crazy new theories of constitutional interpretation."
And somebody wrote this on an originalist blog that 20 people read. And then suddenly, people started going crazy one of our colleagues started getting like, very angry about people talking about the oath. Another mutual friend of ours, like called me on the phone, in a sort of a weird situation to tell me that I was a great guy, he was sure I would never do this. But this oath argument was sort of nasty and un-American, and needed to be eliminated from our discourse, because it was so uncivil. And there's a whole sort of meta debate about people getting really uncomfortable with any talk of the oath as having any consequences. I find that so weird. I'm still trying to understand what people could be so mad about.
Adam Chilton: But it doesn't make me mad, but it makes me think how silly this whole project is. Because it just seems flat implausible to have a theory of the oath that entails more than half of people that have taken that oath are explicitly breaking it while trying to act in good faith. And you're just like, "Oh, you guys are all mistaken for reasons you weren't aware of. And the oath means some other thing," just doesn't seem plausible to me.
I mean, I don't know the exact numbers right now. But the federal judiciary has been back and forth, have people that are conservative or not, and even among the conservatives, I don't know what the breakdown is. But historically, they've not all been originalists, even on the Supreme Court. And so the share of people that adopted the view that purportedly everyone's signing off to seems weird. And especially the members of Congress, the President takes this oath too and more than half of them are Democrats. It doesn't seem plausible.
Will Baude: I feel like we should talk about partisan politics for next episode for our last episode.
Adam Chilton: Yeah.
Will Baude: People always forget, despite the fact that I repeat it 10 million times that Justice Kagan said she was an originalist at our confirmation hearing. And I may be the one person in the country who doesn't think she was lying. So I don't think it has to be ruling out everybody. I view this more just starting on the other end. And everybody takes this oath to uphold the Constitution. Everybody seems to agree it has some constraints. And so why wouldn't we want to try to figure out what are the obvious constraints? And then does anything not obvious follow from the obvious constraints? And maybe it's impossible for something not obvious to follow? Because you just never have entailments or something. But it seems like this would be a legitimate inquiry as to ask what follows from the oath.
Adam Chilton: Got it. Okay. So this exact debate has come up in versions of it within immigration law. And the reason is to become a citizen, you have to take an oath to, whatever the wording is. Is set by statute to support the Constitution and do your part. The same sort of language that you have to uphold. And also, you are not eligible to naturalize if you don't have an attachment to constitutional principles.
And so you can't naturalize, and you're not eligible if you have done things that are seen as being against the Constitution. Now, this dates back, this attachment to constitutional principles to like the first immigration statute in whatever, 1790 or something like this. From the first congress passed. And so we've had this language all along, that you have to have attachment to constitutional principles. And the way that it came up is then people would start saying, "Wait a second, this person's a socialist, this person is a..." Whatever, people have various important political views. So the powers that be thought, we should be able to use this to say that you're not eligible for citizenship.
And what the Supreme Court said in this, what we mean, is a much more general thing, that you are committed to the idea of the country. And even if what you think is that it should be evolved and even evolved dramatically. Now, once you say that, it's not clear, really what view might be out. But if you think that we needed to move the civil rights movement along faster, you could have still naturalized. If you actually thought that we should be much more socialist, you could still naturalize.
Presumably, if you want like a complete autocratic, theocratic Republic immediately and you're willing to use violence to do it. Maybe that's out. There's probably limits somewhere. But there aren't cases that have found them, because what's in the sort of standard views of people that try to naturalize, that aren't breaking some other law. And it's all been okay. Now, I don't know why the way that courts have interpreted that oath shouldn't basically track to the way most of us think about the oath that they take themselves.
Will Baude: And maybe it should. I mean, so I take it part of the idea here is that what you are holding on to is a certain method of the way in which things can change. That when you take an oath to obey constitutional principles you are agreeing not to take things into your own hands, try to create your own little like, legislature or republic and just impose your views. You got to like go through elections or court decisions are all the things that the Constitution allows. And I think that's really the move that at least original law originalism was asking for top. It's fine for judges to decide cases in whatever common law method as long as that's itself the method that's always been okay. So it's about channeling things into the right method of change. That might actually be kind of consistent.
Adam Chilton: Okay, so if what the oath means though, is that the judges are taking an oath to do things through the right method or the right way. It makes sense that, for instance, the Supreme Court wouldn't be able to invalidate an election unless a case came to it. And there was a specific claim that was cognizable, et cetera. Something like Bush v. Gore got there. They could rule on not the election, but like, is Florida required to stop counting its votes or something? And we get that's how the court might get to weigh in on election and we all knew it could have happened in 2020, with the right set of cases or the right set of facts or something, in a Bush v. Gore way.
But if on like the day after the election, the new conservative majority on the court, then six justices were to issue an opinion saying, "Actually, Trump is president. Game over." We have decided and didn't have any reasons or any law, anything else, that would be violating the Constitution. Because that wouldn't be going through the conventional means. That seems fine. That's a limit on the way that they can change things. A way that they can rule in on the constitution that we all agree on. We agree on that. So that the oath has teeth. It's not that the oath has no teeth.
But the question is, what are normal cases that come in front of the court where there's ambiguous constitutional rules, statutory rules, common law rules, and they have to figure it out. Whether or not there's some judges that decide and vote in the same way that judges have been deciding and voting, for very least you'll grant me decades, that are violating their oath for their votes. And what I think that upset people about the oath argument is the implication that like every vote that Ruth Bader Ginsburg was casting, maybe not every vote, but many votes that she cast were a violation of her oath of office. Not some decision where she invalidated an election out of nowhere. But just like her interpretation of the Virginia Military Institute's right to admit or not admit women could theoretically, depending on your views on the law, be an oath violation. And that's just outside the bounds of argument.
Will Baude: This is funny, this may actually be a microcosm for the positivist argument. So the thing that's controversial, is leveraging some social fact we all agree about. Don't just take an oath, and judges can't just like, go totally out of left field that isn't really totally lawless, and trying to leverage that or argue that it yields some non-obvious conclusion, or something that some people actually... Something that some people actually believe is forbidden.
And that is in a way a microcosm for the broader positivist project. To say like this broad legal principles we all agree on. And sometimes they yield surprising conclusions that half of us are right about and half of us are wrong about. So then at least I feel less crazy that people are concerned about that. I do wonder so I guess you mentioned this earlier. People sometimes act like the fact that it's an oath violation also means like that Justice Ginsburg would have to be impeached or locked up or I don't know, like sent to the bad place or something. None of which, I don't see why that follows. Or it seems weird to assume that stuff follows.
Adam Chilton: Yeah, I do guess a lesson that we've learned over this last weekend is that there aren't necessarily any consequences for violating your oath in the US political system. So maybe that's true of presidents. It's true of Supreme Court justices, too. But I guess you don't need consequences.
Will Baude: Well, and that's almost what I wonder if that was what was going on. It's people were like, "No, no, oath violations. That's a thing Donald Trump does. And when we say he does it, we want a lot of really important controversial stuff to follow. So if you say oath violation, you must want to do to us what we want to do to Donald Trump. And that would be horrible. Because Donald Trump is bad and we're good." I sort of wonder if that was what was going on?
Adam Chilton: No, I think it's much more honor based and old timey than that. Which is accusing someone of breaking an oath, I think is or was a serious charge, you're dishonorable, that you should be kept out of polite society after this, that you should be cast aside, et cetera. And even if there are like direct, immediate political consequences, you're saying that this person is of the lowest character, and has done something really reprehensible if they break their oaths of office.
And so just the implication is pretty bold. It also, it feels like it's part of a non-symmetrical form of argument. Which is, one side is saying, "There's a bunch of originalists that's silly. They're there. And maybe I wish they weren't." And then the originalists are like, "Yep, there's a bunch of originalists and anyone who's not an originalist, not only shouldn't be there, but is violating their oath." I haven't heard of anyone tried to fashion an argument that like originalist have to be thrown off the court. I mean, certainly specific originalists people have argued, but in general to try to put together these moves.
Will Baude: I mean, look, it's been a while since I've watched Robert Bork hearings, but I thought that was the nature of the opposition to our Robert Bork was if you're an originalist, by virtue of that you're unqualified to sit on the Supreme Court. I have been accused of being an astrologer more times than I would ever have expected given that I don't believe anything like astrology. In faculty settings. People are why do we have astrologers teaching in law schools?
Adam Chilton: All right, so I got the first argument, I actually don't follow the second argument why you're called an astrologer. I guess the claim is when people are talking about intellectual diversity and like we don't need people to think every dumb thing.
Will Baude: Yeah. We need intellectual diversity but only for things that have like some sort of intellectual merit or intellectual rigor. And this is just like a form of sort of unscientific soothsaying. And I like coming up with the stars to find out what James Madison thought, and that's dumb.
Adam Chilton: Yeah. Got it. I mean, so my view is that on the Bork thing is that there are two norms on Senate confirmations that are sort of equally defensible on legal grounds, but not equally defensible on practical grounds. So the equally defensible on legal grounds is either the view that you vote for anyone that is not insanely unqualified, because winning elections means that you get to pick people to run stuff, whether or not that's seats on the Supreme Court, or the attorney general or the Secretary of HUD or something.
And if you win the election, you get to pick that person, and unless you pick someone, just like crazy, corrupt, whatever, you're allowed to do it and that we should do that. Another interpretation is in each one of these settings, you have to make the determination about whether or not you think they're appropriate, and you're giving your actual advice and consent when catching casting these votes. And so if you think that Bork is inappropriate, or that you think that Sotomayor is inappropriate, you can vote against that person along the way.
Now, what's interesting here, though, is presumably, if you believe in a strong version of the oath argument, if someone is pre-committed to break that oath, you ought but against them. So if you were in the Supreme Court confirmation hearing, presumably you would have voted against Kagan and Garland. Well not Kagan actually. She said she's an originalist and you believe her. Sotomayor and Garland and Ginsburg and whoever else, because they would be pre-promising you in their writings, in their teaching, and their public statements in their decisions as Circuit Court judges, that they're going to break their oath going forward. So you would vote against them for these purposes, in the same way that people voted against Bork.
But the fact that people voted against Bork is maybe helpful for your argument. See, we all agree that like, there's some sets of views that you're that are disqualifying, and that you're not allowed to have as a judge. We just disagree about what those are.
Will Baude: Yeah, I'm curious as somebody to ask Garland the Kagan question. If somebody who just read him what Kagan said and then said, "Do you agree?" I'm curious what he would have said, I bet he would have said I agree. Because that would have been easy.
Adam Chilton: Yeah, I assume. But I think saying you're saying an originalist or a textualist is the kind of phrasing a confirmation hearing that's like lost all meaning.
Will Baude: Yeah, maybe. I don't think so. I think everybody at least understands there's something, I mean this is back to where we were. That there's some stuff you're ruling out. Maybe it's lost all interesting meaning because maybe it doesn't tell you where you are on the Kagan to Gorsuch range, which a lot of us really want to know. But telling you that you're in the Kagan to Gorsuch range seems actually informative.
Adam Chilton: Oh, I don't know... Yeah, I guess. Maybe there are people that could theoretically be nominated, that would never say it, would never mean it and [inaudible 00:47:51] some sort of different range. I don't know if that's true. I feel like it's more like Robert, saying that he like calls balls and strikes, or some other justice saying it's never even crossed their mind how they would rule if Roe v. Wade would make it back to the court where it's just the range of nonsense that people are allowed to say.
Will Baude: So there was a judge on the Ninth Circuit, Harry Pregerson, who was asked his confirmation hearing, if the law and your conscience conflict, the law is clear. Your conscience goes against it, as a judge, what would you do? And he said, bless his heart, "I would follow my conscience, not the law." And he got confirmed. Now, he's no longer in the Ninth Circuit. But I always felt like he had some maybe special license to be an activist that most judges didn't have. Because he was open about it in is confirmation hearing. In that if two come to conflict that's what he would do. And the Senate said, all right, sure. We're fine with that. But it's hard for me to imagine that would happen again.
Adam Chilton: Yeah, no, I mean, I think you have to do something with the more common current view where you say like, "Oh, I'm a person of deep faith in that my faith obviously informs my outlook. However, my outlook never informs my views on anything." And you have to involve in this totally, obviously, false claim about the way that people decide things.
Will Baude: But isn't it interesting that we make people say that. That we have some norm that's sufficiently strong, that we make our judges say that?
Adam Chilton: I don't know.
Will Baude: Who are we fooling?
Adam Chilton: This is what's so weird about the originalist project to me, though, which is, I think that there is the behavior that judges have always engaged in and continue to engage in the project of judging. And when you're in the project of judging, you normally don't say, "I made this up out of whole cloth." You say here are the principles that formed the precedent. And those principles are clear that we must also do the same thing here. Even if the judge back in their chambers the day before was like, "I have no idea how to resolve this one. What a tough call." And then they say something else when they write the opinion, because speaking in these kinds of ways, is just like wearing robes and sitting in a marble palace and everything else that adds legitimacy to the whole system.
Will Baude: Although it's weird that it adds legitimacy to the system if we all know it's false. So they must be fooling somebody.
Adam Chilton: Yeah, sure. It turns out that you've thought about judicial decision making a little bit more than the average voter.
Will Baude: True, although the average voter probably doesn't read judicial opinions at all. So they probably don't... They don't read an opinion and say, "Well, he said it was clear. So I'll vote Republican."
Adam Chilton: No the average person doesn't read judicial decisions, but litigants do. People that are part of the case, too. And the newspaper reports on various things.
Will Baude: Yeah, although the newspaper doesn't probably either.
Adam Chilton: No, newspapers typically doesn't.
Will Baude: Yeah, just I mean, I think this goes back to another thing we had, which is like, there is this mismatch, I think even I agree about this between what are just say they believe what they do sometimes. And I guess I think part of this product is trying to figure out, why do they say it? And would it be sometimes useful to try to get them to live up to what they say, even if in fact they're not necessarily as good as what they say.
Adam Chilton: Yeah, I don't know. I mean, it's true that there's this sort of doublespeak. I'm sure that you could probably get no justice to say on the record that their judgments are driven by their political ideology. But clearly, that's what explains at the Supreme Court level, at least so much of the variation in their voting. The idea that it's anything else is just not plausible. But you couldn't agree to that.
Will Baude: Yeah, I think you could get them to agree, "Oh, well, judge so-and-so shouldn't be taken seriously because they're a raving left wing loony." Even if that may be what they think, they would never say that.
Adam Chilton: Yeah, sure.
Will Baude: Yeah. So I think this is a good pivot. This should be our last topic for next week is what about partisanship and originalism in judging because it seems like this is where originalism has a huge mismatch with reality, either for better or worse.
Adam Chilton: Yeah, okay.
Will Baude: Perfect.
Adam Chilton: All right. See you Will.
Will Baude: See you next week. Thanks for listening. And don't forget to share it, 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, checkout Divided Argument and unscheduled and unpredictable Supreme Court podcast hosted by me and Dan Epps.