Dissenting Opinions

The Positive Turn

Episode Summary

In Episode 3 of Deep Dive, Will and Adam dissect the claim that originalism is "our law." They discuss how courts handle precedent and policy, and also ponder how judges can change their mind while still being an originalist.

Episode Notes

In Episode 3 of Deep Dive, Will and Adam dissect the claim that originalism is "our law." They discuss how courts handle precedent and policy, and also ponder how judges can change their mind while still being an originalist.

Recorded January 25, 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 back to episode three of Deep Dive, a positive turn, apologies to all true originalism devotees, that we managed to schedule this recording at the same time as another lunch talk on originalism. As Adam joked to me before we got started, who would've thought it was possible for us to have two originalism talks this same time at Chicago. And as I joked back, especially given that there's only one originalist on the faculty, I am impressed at our ability to have multiple originalist talks at the same time. But that's the embarrassment of which we live in and I'm excited about it.

            Okay. Last couple times we've been talking about originalism. I hope we're on the same page. We walked through some of the basic preliminary arguments for originalism, which stemmed partly from just arguments about what it is to read words, and partly from some of the consequences that come from interpreting the constitution in line with how it's originally enacted, and possibly dangerous consequences that come from interpreting the constitution differently, or letting judges do something different.

            And then Adam pushed back with a lot of the reasons to be concerned about originalism, including that it seems like it's not really what our real practice is. Changing to originalism comes with a lot of sort of moral and practical costs, and not what most countries do. And doesn't seem like a natural or good way to run a legal system. So why would we suddenly create this crazy thing and start trying to impose it on constitutional law? I think there's a lot of merit to those critiques. I tried to give the best sort of answers I thought there were to them last week, but I think there's a lot to those critiques.

            And this more or less brings us to the state of my brain, less than 10 years ago, when I'm started worrying about originalism and thinking that if it's right, if it's right, that originalism is not currently what marks our constitutional law. If we currently have some other kind of constitutional law here, maybe we shouldn't change. That the arguments for originalism, I think some of them are good, are not so good they necessarily justify overthrowing some other system that works. Okay.

            And so that led to what I call the positive turn, which is the question of, well, what is our actual law of constitutional interpretation? What is it judges do? What is it everybody who interprets the constitution does, like what just had to sort of approach our constitutional law system as an outsider, as an anthropologist trying to understand the weird stuff judges talked about. What would you say about it? And I think that the more you look at it, the more you come away thinking, "Actually there's a lot of originalism in our law right now." The sort of claim by people like David Straus and others that we really have a common law system just as a descriptive matter, doesn't seem right. And maybe this part's more of a stretch, but I think it's true. There's so much originalism that the best way to describe our system of constitutional law is it's originalism. It's got some complications it's, it certainly allows for things like precedent, but it's originalism.

Adam Chilton: So let me just jump in here to make sure I'm clear. So you're starting with the descriptive claim that actually, that our system already is quite originalist. And that if we were to just describe what we're doing, that originalism is a reasonable way to explain what's going on.

Will Baude:    Yeah, yeah. Let's let I think so. Let me try to break this into three parts, because I think there are so many different ways to disagree with this that I don't want to loose track of them all. But I thought maybe first we talk about the sense in which I mean it, the sense in like even... Just define our terms so to speak. What was it mean for originals to be our law? Then we talk about the evidence and then we can talk about whether that sort of answers any of the questions or objections that we've raised, whether that actually gets us anywhere. Does that seem fair?

Adam Chilton: Yeah, that seems like a good approach.

Will Baude:    Okay.

Adam Chilton: Thanks for laying it out.

Will Baude:    All right. So what does it mean for originals to be our law? What's even the claim? So I guess that claim has two important words in it. Originalism and law. Ours kind of important, but we'll skip that. So when I say originalism, here's what I don't mean. I don't mean that every single Supreme Court decision or other judicial dispute is handled only by looking at sources dated 1789 and earlier, right? Like, you could imagine a version of judges only the originalism is literally they look at the words, look at things people said up to the time it was enacted and all evidence after that or all things after that are irrelevant. I don't mean that.

Adam Chilton: Got it. Just so we're clear. That is a pretty standard definition of what originalism means?

Will Baude:    So, that is a... That is a thing people sometimes mean by originalism. I'm not sure whether it's standard because so here's... This gets us back to something we talked about on the first day. So suppose that the original meaning of the constitution includes some phrases that the framers themselves intended to be somewhat open ended. I think you talked about this. Some things are clear rules, but suppose the original meaning of cruel and unusual punishments was something like don't do anything that hurts people if it hasn't been done in a long time. That's a plausible... Then to figure out that something is cruel and unusual as an originalist, you would have to look to some evidence. You'd have to look to... Like, the original meaning itself and tell you have to look to other things that happened since then.

Adam Chilton: Yeah. Although, I mean, I guess this is all semantic and originalists love being semantic, but to understand what the meaning of the constitution is and what is to perform the constitutional aspect of interpretation, you'd only be looking to things 1790 or earlier. Which is you take the eighth amendments prohibition against cruel unusual punishment. To understand what it means to be cruel and unusual, you'd learn that this means anything that hasn't been done for a long time. Now it's true then you'd have to look at sources post 1790, but not for the constitutional interpretation piece, just for the application of whether or not a given statute violates them or something like this. Maybe now I'm being the semantic one.

Will Baude:    No, that's great. And I, despite being an originalist and law professor, I actually don't care a lot about the labels. So I'm open to labeling this whole thing something else, but this is exactly right. So when you care about the actual meaning of the words in the constitution, that you should go back to 1789, and you should only look at subsequent stuff to the extent that what the rules you find at 1789 permit you to.

Adam Chilton: Got it. OK.

Will Baude:    So some places the sort of like application meaning thing gets a little blurry, the most important of which is also precedent. So, if you go back and look at the original meaning of the constitution 1789, and you conclude that the original meaning of the constitution permits you to use precedent to resolve cases, which most people have looked at it conclude, then it's okay for an originalist judge to use precedent. As long as they're using it in the way that the constitution says. It wouldn't be to change the meaning of the constitution. They wouldn't say, "Oh, freedom of speech now means whatever crazy stuff it means in the 21st century." They just say, "We are permitted in deciding this case to rely on precedent." Maybe technically the meaning remains the same. But in thinking about the application today, we're allowed to use precedent. Again, if it were allowed the found.

Adam Chilton: Okay. Got it. All right. So that's not what you mean though.

Will Baude:    Right now we're getting to what? Sorry. Now we've move from what I don't mean to-

Adam Chilton: That's what other people think. Now what the original turn is you-

Will Baude:    When I say originalism was our law, what I mean is judges use methods of interpretation that are permitted by the original meaning of the constitution. So they either use the original meaning of the constitution itself, or they use things like precedent, or like applications for the cruel unusual punishment clause that are themselves permitted by the original intents of the constitution. They never do something that the original meaning of the constitution forbids. They never go outside that. So, everything traces back to the original meaning of the constitution. Sometimes it traces back in like one step, sometimes it traces back in two or three steps, but it always traces back. And if you can show that some interpretation that the court has come up with involves a sharp break from what the original made the constitution permitted. You know, it's not what the constitution permitted, and precedent doesn't permit you to get away from it, or any of these other things don't permit you to get away from it. Then you've shown something is not a originalist. That's what I mean.

Adam Chilton: Okay. All right. I guess part of the ballgame now just becomes understanding what methods of interpretation were allowed at the founding, and how different that is from what other people understand. Right. For instance, if the Straussians are correct that the founders were okay with idea that the constitution was authorization to create federal common law on constitutional questions. In some sense, you guys would be on the same page, right. If he is right on that, basically.

Will Baude:    If he's right on that empirically. Yes. So, I mean this, well, I described this as a semantic question, a huge part of what it does is it hopefully will flesh out non-originalist accounts in a more careful away. To figure out... So, people who have a non-originalist account of constitution will often say something like, "Well, the framers weren't originalists. So we shouldn't be originalists either, and anyway, who cares what they thought, because we should just do blah, blah, blah because it makes sense." And I guess I'm saying that's actually two very different kinds of claims packaged together.

            The first is an empirical claim, which if true, even originalists should accept. Because you can't... I think you can't be more originalists than the framers themselves. So if it was permissible at the framing, it's in this sense originalist, and we can, again, relabel, if we need to like framers originalism or something. But the second claim is not an empirical claim, but a normative claim that doesn't rest on the history. And we need to know and respond to these claims. Am I supposed to go back and actually like read David Strauss's history and come up with a historical critique? Or when I do that, is he going to roll his eyes and say like, "Nobody cares what the framers think." Well that wasn't the point.

Adam Chilton: Got it. Okay. All right. I understand the distinction between these two claims.

Will Baude:    So that's the claim which that Congress originalist, they care about pedigree everything back to the founding. And then the claim that it's our law is when Supreme Court justices or anybody else have to explain why they're ruling the way they do, or when people have to make arguments to the court to rule in different ways. This is the kind of argument they have to make. It's like the rules for what kinds of arguments and what kinds of justifications are permissible. It's not to say that the court always gets things right. So court gets things wrong. So that doesn't... So I'm not saying that every Supreme Court ruling ever, or even like, the most recent Supreme Court rulings all match, what I think the correct understanding of constitution is, but I'm saying they all use originalism as the guide to who's right.

Adam Chilton: Got it. Okay. So on that, so your claim is that this has been uninterruptedly that people use originalism as the guide to what's right. Or this is like, some moment where we can say, as of this point, the court decided it.

Will Baude:    Good. I guess we are going to have to define all four words. So I think... So that was originals and that was law. Now is. Right. Right. So I have not tried to prove that this has been uninterruptedly our law. And I think it's probably not. I think there probably have been periods where if you were just trying to look descriptively at what our law was, you wouldn't say it's all originalism all the time. A little hard for me to know, because as long as I've been alive, originalism has been such a rich part of constitutional interpretation, or at least as long as I've been reading things written by judges about law. But I'm pretty sure that if I were alive during the Warren Court, I would not have written this article and people would not think it was true. Now, I don't know whether those gap are big or small, I'm inclined to think they're actually kind of small.

            I first thought they're big. But then the more things I read, the more originalism I find and all sorts of weird moments in history. But I'm just going to stick with the currently or in like the current generation of law. This is the set of arguments that are permissible. I think probably in some previous generation that some of our colleagues were alive for, there were some other stuff out there, but the claim is just that this is our law. And our, since now we've done this, not claiming this is true of all constitutional law everywhere. I don't think it's true of lots of other countries for we've talked about and not even convinced it's true of all state constitutions, which sometimes have their own arms. So really just like in terms of interpretation of the federal constitution in the United States.

Adam Chilton: Got it. Okay. So I have a bunch of questions, but I'm not sure where they fit into the framework.

Will Baude:    Well, go for it. And we can, the ones that I don't... We're not ready for.

Adam Chilton: Okay. So one question then is to the extent that it's possible that the degree to which originalism is our law has changed over time and that this is thing has been inconsistent to the extent that that's true. How is it that the Supreme Court is capable of making meta rules about what the law is about the constitution via dicta? It feels like a weird way to be like, all of the rules that what is constitutional and what is constitutional are going to be decided without even the Supreme Court having to issue an opinion directly on the point.

Will Baude:    Couple things. So I don't, I mean... First, I don't think it's just a matter of like, what does the Supreme Court do? So I don't think the Supreme Court alone can change it. This is really reflecting something about our legal culture, more broadly. It's also, what do the lawyers argue to the justices and the fact that the justices make arguments this way, and other people receive them as not being totally crazy talk. There's like, sort of a whole legal culture thing, which the Supreme Court is just the most important and useful data set. But still, I think, I mean, there is this practical sense in which if the Supreme Court started repeatedly signaling that they didn't care about originalism at all, smart lawyers would probably stop doing it. And over time our legal culture would change. So, I fight the hypo a little bit.

            Then the other part of the question, I don't know, maybe we defer a little bit until we get to whether this matters, right? So maybe, maybe I'm going to win and say, yes, this is in fact our law, but what we've also seen is that Supreme Court justices can subtly transform our constitutional law if they want to. So, who cares? Well, they should just start suddenly transforming it into something other than originalism. I'll just... I'll put that as a possible critique, which I think is wrong, but...

Adam Chilton: Okay. All right.

Will Baude:    What else you got?

Adam Chilton: Well, I think then once this is the claim, is that what originalism means is the methods of constitutional interpretation in theory that were seen as viable methods as of 1789, then the whole question just becomes what were the viable methods of interpretation in 1789? And you could end up saying something quite strong here, or something extremely weak. Which is if I were to believe, as I do in some version of that, most judges are engaged in this sort of similar common law practice, where they care about the text, but not exclusively, they care about the doctrine, but not exclusively. They care are about the practical and moral implications of their decisions. And they're trying to like muddle through on these different questions to get to the right answer. And that's just sort of what judging is and has always been. Yeah, that's the way British Common Law judges thought about this 400 years ago, the way that American founders probably understood the role of judges 240 years ago or whatever. And that is the way that many people understand the through today.

            And if you're just saying that the law is that judges should engage in judging. Like, yeah, sure. That's not saying much at all. But if what you're saying is that there is a set of things that other constitutional law professors think are judging and what the Supreme Court is up to, but that you've got a narrow set of which arguments they're allowed to make. And other arguments that are now off the table, since you wrote this article and you guys discovered originalism is our law. That then is potentially a huge claim. So, that's what I'm curious on. To what extent are you smuggling in a narrow claim through this guise of originalism being our law. Which sounds extremely disruptive or are you being extremely disruptive?

Will Baude:    Right. So this is something only a law professor would do, right, is to appear to say something obviously false and incredibly disruptive, but then upon investigation, it turns out that it's secretly a modest claim that's totally harmless.

Adam Chilton: Yeah. That does seem like your MO actually.

Will Baude:    The smart form of smuggling though, is the opposite, right?

Adam Chilton: Yeah.

Will Baude:    It's like, I don't know, whatever the opposite the Trojan horse is. You like wheel up some giant cannon, and then it turns out that it's actually just a wooden cutout. It's not going to hurt anybody.

Adam Chilton: Yeah, that's right. We'll [inaudible 00:17:03] the anti-Trojan horse.

Will Baude:    So first I mean... I think the first is doing some work. So, if we could actually all be on the same page that judges just judge the way they've always judged, that I think would be useful progress. Because you regularly read even very smart, constitutional law professors at this school or others, openly arguing the judges should do something else. I mean, you read a cost benefit critique of all of constitutional law. The basic idea of which is just like, "Well, who cares about going through tax doctrine, blah, blah, blah, blah. This is just a terrible idea. Judges should stop doing it." And now those arguments don't get a lot of uptake with judges. I think that tells us something, but that's correct that they don't... They shouldn't get a lot of uptake with judges and like shoring up that piece of the system is actually like a... It is a useful thing to do.

            But I think the smuggling in the, not even smuggling anymore, we're opening it up. I think there are real consequences. So if we can get everybody on board that not only should judges judge rather doing something else, but they have to judge in more or less the same way judges have always judged. Then I think a lot of the methods of constitutional interpretation that some law professors like today are open to historical critique and a lot of them will fail. So I do think when we look at what was the common law method back at the founding, or shortly thereafter, it's going to look very different. They lived in a world without eerie. So they didn't have the idea that doing common law was necessarily like making law or policy judgements. They lived in a world with a very different form of precedent, where they didn't have the idea. The judges could just decide a case. And that was suddenly binding like an administrative rule. So I do think once we sort of connect ourselves to the founding, it's going to come with... It's going to come with consequences.

Adam Chilton: All right. Well, no eerie and no binding precedent or massive consequences. If that's what now you want to defend as part of that. Those seem like bad ideas to me.

Will Baude:    Fair enough. I'll just, I mean, I don't know where this goes in my own scheme either. Maybe this is just going to go in, is this all a bad idea, but unprecedented just because I think it's helpful to clear it up before we're go any further. I don't mean there's no such thing as constitutional precedent, I think there was. Like, you look at all cases in and around the founding, they talk about prior cases. They think that like how a judge decided something beforehand is relevant and useful, and you shouldn't go against that casually. But they do have a very different way of thinking about it than we do now. So they don't have... What they don't have is the modern, I guess the like stare decisis concept, like once the court has spoken that settles it, everybody's supposed to move on. They instead have much more of a sense of like individual precedent build up. Each precedent is evidence of the right answer to a question, but they don't like they don't settle things the same kind of authority as a modern decision does. So it's a more common law system in some ways, and less like our kind of the Supreme Court decides of Bush versus Gore and they just tell us to shut up and get over it.

Adam Chilton: Yeah. Does anyone really believe in the like really strong version of stare decisis? Like that that... I mean, it just does descriptively doesn't seem like that happens. So if what you're saying is that they were just more honest about the status of precedent in their way that they evaluated it.

Will Baude:    Yeah. I mean, I do think now there's a lot of, dishonest there on the status of precedent. I mean, the Supreme Court seems to. Like, in the sense that the Supreme Court seems to think once they issue one ruling on a big question, they get to be done with it. And that it's sort of annoying if people keep bothering them about it. And you could see why it would fit there the way... They'd rather do annoying, politically costly, fractious things less often, rather than more often. So you could see why it would fit their sort of need for power to give us that story.

Adam Chilton: I feel like often that's just an excuse for minimal exercise of discretionary cert, right. Which is, "Here's some case that we've already discussed once instead of redeciding this issue, we won't bother with important cases and just let the circuit courts decide them, unless we want to say something different about the status of the law or overturn the circuit court opinion." But it's not clear that it's actually really something true about the status of precedent. It's just their status of not wanting to deal with more cases.

Will Baude:     Well, good, good. Maybe so. But I guess what I mean is these things reveal that this version of the common law method is a little bit less like judges can just decide that something is a good idea and put it in an opinion, and boom it's done right. Like I said, they can't just put something in an opinion and it automatically becomes the law. It requires repetition and a bunch of people to agree. And so it's slower for it to have like actual uptake.

Adam Chilton: All right. So let me ask you for not great example then. So I've been working on an article with some of our past and current colleagues on affirmative action in higher education. And here you have this string of Supreme Court decisions starting at least with Bakke maybe earlier, but through Grutter and Fisher, that all are about to be relevant. Presumably I guess we are all assuming that are going to make it back to the court even yet again, where the diversity rationale and other rationales for Affirmative Action in higher education are discussed and considered. Would an originalist, if they were to get whatever the next affirmative action challenge is. For instance, the challenge to Harvard College's current admissions programs, would they just like start with the text of the 14th amendment or one of the various statutory guide, or would they actually go through Bakke and Grutter and Fisher to try to think about what the requirement and what is, and is not constitutional.

Will Baude:    Okay, good. Yeah. So I think all originalists would care about what the previous cases said. I think all originalists along the court would agree that precedent has some role in constitutional interpretation. I think the right view. So originalists who thought about these things the right way, would be convinced that they shouldn't follow those cases if they're clearly wrong. So if... Those cases are sort of a good starting point. And if you go back to the debates of the 14th amendment and the original meaning of the 14th amendment, you can't really figure it out, because they didn't think about affirmative action, the same way we think about it today or whatever. Then you'd probably stick with the precedent. But if you went back and were pretty convinced that actually they had a symmetrical rule for race, so that discriminating as people of one race, the same as the other or you know, whatever, you're pretty convinced those cases were wrong, then you'd overturn them.

            Now I think there are people who think of themselves as originalists and have a different view of precedent. So Justice Barrett wrote about precedent before she joined the court. And she seems to think that precedent can play a stronger role than what I just described. That's a debate about the original meaning of precedent that I have not prevailed in, but if I write about it that, right, then the precedent and that's obviously a practice, a huge one people care about for these debate federations.

Adam Chilton: So if the precedent is incorrect, to you, it has no value in saying that we've got some settled doctrine.

Will Baude:    It's something like, I mean, this is the original article that proposed, this was something like the Chevron standard. So if there's some band of uncertainty, 60%, either way, 70%, either way, where you follow precedent and then some band of certainty outside of which precedent is wrong. I don't know how much, you could argue with the numbers, but that's the idea.

Adam Chilton: There are instances where people say, "Well, even if this precedent is wrong, or under some original understanding or something like that. We're now a hundred years in, why would you change it?" But I feel like no one's, not very many people are very consistent on that attitude. And that there were precedents that are a hundred years in, that they think are in whatever way discriminatory, problematic, cause public policy consequences, they'd be willing to change them. So I think that a lot of people just make instrumental arguments about whether or not they're willing to change things based on this, how settle the precedent.

Will Baude:    Is. Okay, good. So I think this is moving us to phase two, which is like, now we got the claim. Is there evidence this is actually how the court thinks about constitutional law and of the most important places to look is, how does the court actually treat precedent? Right? So, some of the evidence in favor of the view that originalist are law, is it's never too late to overturn precedent. Everybody seems to agree, it's never too late. Like there's no such thing as a precedent that's beyond question if you think it's wrong enough.

            And when the justices talk about the precedent and being wrong, they often talk about it being wrong from the beginning, like it, this decision was a mistake. We shouldn't have decided it that way and we should now fix it. They don't. If we lived in a sort of the world that David Strauss describes, instead of just like common evolution, you'd expect them to say, "Well, look, this decision was right then, but now we're changing the decision." That would be the more way to talk about it. But instead we see a lot of for certain things, for each justice they're especially convinced are wrong. It's never off the table to say, "This is clearly wrong and it was a mistake we to fix it."

Adam Chilton: Okay. How often is that true when it's judges second guessing the opinions of previous justices versus true of justices saying about their own opinion? Because if you take examples, like Brown V Board overturn Plessy, of course that's the way it's described or even the recent in the Trump travel ban litigation, the discussion of overturn Korematsu, it is like, this was wrong. It was always wrong. Can't believe how wrong these prior people were, because they were so, so wrong. But those cases or instances where the justices that wrote and signed those opinions were long off the court, if not long dead, I think in every instance. And so that's the way they describe it, but makes it easier to say what their view is and also to move away from it to justify the break. But, I'm not sure how critical it is, that argumentative [crosstalk 00:26:31].

Will Baude:    I do think these are the same argumentative move for justice who are on the court. So like in Citizens United, Justice Kennedy overturns prior free speech precedent that had upheld restrictions on corporate speech and his main arguments are citations to his own descent in the previous case. It's mostly not devoted to, "Oh, that decision was right before, but now it's time to fix it." It's mostly, "My colleagues were wrong then, as I said at the time and now-"

Adam Chilton: Yeah. All right.

Will Baude:    I'm right for the reasons I said at the time.

Adam Chilton: Yeah, there was... Yeah. Right. So that definitely happens where the justices put down the marker in an opinion. And then they wait until there's changes in the composition of the court, and finally they have the votes to do something. Right. And that is a way that precedence changes. So I guess that's right. It happens to be the case that there is people that thought it was wrong at the time that it was decided that they then... And it might be those same people.

Will Baude:    So I think, I mean, that's... So you see that. And I now I think if you just had these two things alone, you might say, "Well, look, all this shows is that originalism is really important and precedent's also really important." And so really the best, and think this is the best plausible competitor for the view of the originalism in law, is really, we have a two prong law. Our law is some amount of originalism and some amount of precedent. And you could just like your simple toy model of constitutional law could just be those two things. That would also be like really clarifying and making clear there isn't some third thing. Because again, there are a lot of judges, even a lot of scholars, even David Strauss, who think there is a third thing besides originalism and precedent, namely, you get to make new precedent when you think they're really morally good without caring about originalism. So, even if we could say we're limited to originalism, precedent, that would be helpful.

Adam Chilton: And you still, I mean, how does precedent evolve if there isn't some third thing?

Will Baude:    Well, so right. So it could evolve again. If you just had... If originalism plus precedent, it could be, all we do is half precedent and then we try to overrule them when they got the original meaning wrong and get them closer to originalism. So, where originalism is working itself pure. We're slowly getting rid of the wrong non-originalism precedent over time. You know, maybe there are a few that'll never get rid of, but we're always working in a direction towards more originalism, or we're trying to.

Adam Chilton: Got it. Okay. And in the view of precedent, is not that it is the way that it bill up is that there's new cases that are considered and those new cases require us to figure out what the original meaning is. But it's not that we have some precedent and then we learn facts about the world and then we slowly move the... So this is a rejection of a common law approach. If you don't think that the judges are allowed to like, use their eyes and their knowledge of the world in their assessment of empirical consequences to nudge the law in particular directions.

Will Baude:    Partly, or it's a rejection of... I mean, it's a rejection of what some people would mean by it. So it's still like the common law approach. We'd say there's written law, that's ultimately supreme. Judges get to interpret law in the shadow of it. But the written laws ultimately supreme, the same way, statutes trump common law decisions. And like the common law, for some of these things like we started with applications. You might still have to use your eyes and experience to help figure out the best application of a provision, the meaning of which is originally fixed. So if you know the original meaning of unreasonable searches and seizures has some test that requires you to learn more, over time about what counsel's unreasonable, what doesn't, you'd still, it's not like judges are going to be potted plants. But it's different from the regime where I imagine judges are just slowly deciding cases and learning what kind of contract law mixed for better society.

Adam Chilton: Got it. So is your view that if this was, we're slowly working ourself pure that at some point we're going to be like, "Hey, we're done with incorporation. And all of a sudden the Bill of Rights doesn't apply against the states." And also thinking that the first amendment regulates the administrative branch, that was silly of us, because we forgot that the first amendment just used the word Congress. Also Bolling v. Sharpe is silly, and the federal government's allowed to engage in explicit race based decisions because the text of the 14th amendment doesn't forbid it and this fifth amendment application, no one had in mind, et cetera. So we're like we get rid of these like core features of our constitutional system as we work ourselves here, whereas precedent in those cases going to stay.

Will Baude:    No, no. And maybe yes. So, I think incorporation is probably here to stay because it's probably right as a matter of the original meaning of the constitution. I reserve judgment on this until I finished teaching my seminar on the original meaning of the privileges immunities clause next quarter. But that is the academic consensus of originalists at this point, I think.

Adam Chilton: Hold on, wait a second. That privileges and immunities limits what states are able to do. And that then is circumscribed by whatever was in the constitution. And so if the federal government can't do it, citizens have privileges, immunities, something, something, something. That's how you get the incorporation.

Will Baude:    Yeah. Either directly or indirectly. So there's a consensus that things like free speech are protected under religious immunities laws and not a consensus about the route, whether it's that privileges and immunities means the privileges and immunities that are contained in the constitution against the federal government. Which is what some people said at the time. Or privileged immunities means something else, like things that were widely regarded as really important rights at the time, a set that like largely, but not perfectly overlaps with the Bill of Rights. But I think there's a consensus that privilege immunities protects a bunch of stuff that will resemble corporation of Bill of Rights.

Adam Chilton: Got it. Okay.

Will Baude:    The free speech clause applies to the administrative branch because the due process clause, which says "The executive can't deprive people of life, Liberty, or property, without due process of law." And that requires to go through Congress. And that triggers the free speech clause. It's not... It won't be exactly the same, but executive branch of free speech is pretty easy.

            The third one that made me nervous. Oh yeah. The equal protection clause applying to the federal government. This is harder. There is a revival of weird originalist theories trying to explain why the federal government is bound by these, by if the discrimination norms. But I don't think any of them... None of them yet persuaded. Like most people who care about the answer to that. And I mean that maybe, maybe you're asking a empirical question. Like, is the court going to overrule those precedent or will it find some dodge to keep them? And if they found some dodge to keep them maybe that weakens my claim that originalist are law. Although it depends on the dodge, right? If they come up with a dodge, like they buy one of these weird originalist arguments that just shows how much they care about originalist arguments. But you're asking like what's the actual logical consequences. I do think the federal government is free to discriminate and that this would actually have good consequences if we recognize this.

Adam Chilton: What's are the good consequences?

Will Baude:    So the good consequence is at this point, equal protection doctrine is used against the federal government, almost exclusively to strike down affirmative action programs. There's a great article by Richard Primus called Bolling Alone that goes through every case where race discrimination with the federal government is invalidated. And the overwhelming majority is the court striking down various forms of discrimination in favor of minorities, the federal government... Just the gap between federal government policies and Supreme Court justices never gets large enough for the federal government to do something that the Supreme Court is willing to stop.

Adam Chilton: Got it. Hold on. So what we're saying is that, roughly speaking, in exchange to integrate the DC school district a little faster since then, we can't have affirmative action at the federal government.

Will Baude:    Yeah.

Adam Chilton: That was the constitutional trade we made?

Will Baude:    Yeah.

Adam Chilton: That's true. That was a shit trade. I mean, obviously I want the DC school district integrated as fast as possible, but you know.

Will Baude:    More complicated once you bring in things other than race. So once you bring in sex and sexual orientation and stuff like that, but on race discriminate.

Adam Chilton: Sorry, I didn't know that. All right. That's interesting. What else you got?

Will Baude:    I don't know if this is... I don't know if this is helping or not, but so in terms of evidence that originalists are law, we've got the way the court talks about precedent and here's the other, I guess two strongest points, are in cases where there's no precedent everybody naturally becomes an originalists. Like when you start talking about can you impeach an ex president who's no longer president? Or the constitutionality of recess appointments? Or like these various things that come up where there's no precedent, all the arguments are heavily originalist. That's just like the natural vocabulary everybody uses.

            And you never see court say things like, "This is the original meaning, but we just don't care." Maybe, again, maybe outside of precedent, even there, we just talked about that, but like you never see them say what you'd expect them to say, like, "The original meaning is X, but like, hey, that provision was written 200 years ago by a bunch of white property owning." They never say that. They never ever say that.

Adam Chilton: Okay. A few thoughts on this. So first off the claim that when something is a new question, where we don't have precedent on it, that we first go to the text, that sounds descriptively right to me. But that also sounds like the Straussian common law constitutional claim, which is roughly speaking, that after an amendment past, if it was passed clearly to settle some question that we understand that like, that thing that it just answered is off the table for the foreseeable future. And that we need, to over, time figure out what this means. And we start with the text or whatever else. And so if we want to know, if you can impeach a president after they left office, you first go back and figure out what the impeachment clause says and then what people thought it meant. And then you start looking to the post civil war precedent or whatever that we have on this, and the practical arguments and whatever else.

            That seems like what everyone's on the same page as though. So it's weird to use that as and evidence that originalism is our law. And if that that's the part of the debate that no one's arguing against. Because the real claim is even if you start by looking at the constitution can over time we drift away to things like Bolling v. Sharpe or Bakke, or whatever it else it is that like takes the text of 14th amendment or the first amendment or something, but then departs from it over time. The, latter claim that no one ever says we're ignoring the original meaning. Yes, that's true. But a few thoughts on that. So one is it's true that no one directly says that, but instead what they do is they just built up the precedent without ever directly saying it in the same way. This reminds me of Richard Posner, who would say you "All judges care about their policy preferences or whatever. They just don't say that I'm not willing to rule this way or that way. They find a way to say the law allows it."

            Right. That's just what judging is. You don't say the law says X, but I think Y therefore, Y. You say, ah, actually it just so happens that the correct interpretation of the law is consistent with Y. Right. That's just the move of judging. And so then to, it almost feels like you are being naive by taking the way that judges talk and then being like, whoa, "They must be doing this literally, no other strategic reason that they would engage in this behavior."

Will Baude:    Two things. So I guess one claim is this is still meaningful. It's like a different way they treat originalist arguments and some other kinds of arguments. So you do see the court say in particular cases, "We don't care about policy arguments." They say, you know, "It's been argued that like, if we interpret the confrontation clause this way, it'll have very bad consequences for criminal prosecutions, but that we're stuck. We just can't care. Because the constitution says so."

Adam Chilton: Yeah. But no one thinks some version of, I mean maybe some... Like it's such a straw man to think that there's anyone that thinks that there can be the law and you can just blatantly ignore it without coming up with some gloss for why that's okay.

Will Baude:    Maybe, but policy arguments are also, some people often think they're part of legal argument. So, but-

Adam Chilton: Yeah, well that's because there's some ambiguity and then we're like, "We all know really what you're doing is policy argument. So we'll just like feed you what you need to hear to then make the-"

Will Baude:    Okay, good.

Adam Chilton: The stretch.

Will Baude:    But so, and similarly for arguments about practice. Like the court, the legislative veto people say, "Oh, Congress is between these legislative vetoes for decades and be really disruptive if you struck them down." And the court says, "Well sorry, the original meaning of the Constitution's very clear that you can't have legislative vetoes. So, you're stuck." So, I'm with you, these might all be rhetoric, but that's... It seems to be a special kind of rhetoric about the text of meaning the constitution.

Adam Chilton: Yeah. I mean, okay. Yes. You are allowed to say that you're not moved by clear empirical evidence that there will be a negative consequences of something. And you are allowed to say, you're not moved by practice. But you are not allowed to say, I am not moved by what is legally required for me to do.

Will Baude:    Well. And in particular, the text of history of the constitution.

Adam Chilton: Yeah. Okay. Sure.

Will Baude:    Part of my claim is the text history of the constitution are, which is a legal they're required to do so. So this is why it's good that you're talking this way.

Adam Chilton: Yeah, I guess, I mean. Right. If someone were to argue in front of the Supreme Court that it says that the constitution clearly says the president has to be 35, but you know, people are actually at their intellectual prime at 33, therefore the new 35 is 33 or something. No one would go for it. Agreed. And it didn't matter how persuasive some study was documenting that we got the age wrong. No one would change it.

Will Baude:    If you have an argument in the Supreme Court and they say, "Well, isn't that bad policy." You may well be allowed to say "Yes, your honor. But the laws just really clear here." Now maybe you'll have some argument on the policy. We don't have to, you can say "The laws just really clear." And they'll say, "But isn't this not the way we've been doing it for 10 years." And you say, "Yes, your honor. But the law is just... Constitution's just really clear here." Isn't there precedent against your position. "Yes, your honor. But you know, you just overrule that precedent at this point." But isn't the text of the constitution against you? "Oh no, your honor. Text of the Constitution's not against us, it's ambiguous." You'll always say that. Right.

Adam Chilton: Oh man. I guess, it feels like your fallback position is, or not maybe it's not your fallback, your first position is like constitutional law is law. I mean, yeah, that's what law is. You can't say the law says X, but that doesn't matter. Whether or not it's a statute, a regulation, whatever. That's what the law is.

Will Baude:    Good. I mean, I think we're on the same page actually. So there are lots of people out there who say, "Oh, you think the text of the constitution is law, but you know, you're just not being sophisticated. The real law of constitutional interpretation is history plus practice, plus the likely consequences." They're like, this is like a mainstream view. And you and I think are on the same page, that the other stuff doesn't get treated in legal arguments the same way as like, the written text of the constitution,

Adam Chilton: To be clear on my view then on, of all of that. My view is that whether or not you're interpreting a statute or the constitution or a regulation or whatever it is. No one wants to say, "The law says X, but I'm going to completely ignore it." You know, people some, occasionally if they can have some reason that it would produce absurd results or it must be unconstitutional or something. Right. But you don't see a lot of opinions that are just like, "Naw, I'm not doing it." Without some justification for why it would be legal to ignore it. That all seems true. The question though is, when figuring out what the answer to what the law requires, the extent to which people are swayed by policy arguments and precedent, that then influence through motivated reasoning what they think the text says. And the answer has to be a huge amount. And for whether or not you're an originalist or not an originalist.

Will Baude:    Okay, good. So I think this is the second point of disagreement. One question is, what methods of argument do they use? And the other question is what actually sways people. Right.

Adam Chilton: Okay.

Will Baude:    So, I think where we're going is, and I'm not going to hold you to it, but I think you're at the moment spotting me that these maybe the methods of argument people use, that maybe I've correctly described how people talk about this stuff, but I'm not actually describing what's going on, on both aside the cases, or what data you'd want to predict how the court decides the cases.

Adam Chilton: Yep.

Will Baude:    Right. Okay. I agree. So this is the other limitation of the claim so far. Is that the when I say that originalism are law, I'm describing like, the methods of justification that everybody uses, how they feel need to justify themselves, not necessarily what actually... What they're actually doing.

            It may well be that either intentionally the justices think, "Well, I got to I got to write this originalist opinion, but I'm really doing this because I just can't stand to let the libs win." Or through some form of motivated reasoning. Like, they genuinely think the text is ambiguous. They genuinely think they're resolving it in a way consistent with longstanding principles of interpretation. But low and behold four times out of five, that matches their partisan policy preferences and somebody else's matches the other. And I don't deny those things. All I think we have is sort of how do people talk about it. So maybe that's kind of talk about the third thing, which is whether any of that gets us anywhere.

Adam Chilton: Yep. Let's move to that. Yeah. I'm curious on this answer.

Will Baude:    Okay. So I think it does. So obviously I guess I think the way in which everybody talks about law and what they say they need to do to interpret the law, that's evidence of this really powerful social norm of what our law is and that stuff like.. If you secretly thought something else, but you recognize, you can't admit it, that's a sign, right. That that's not a legal move in our system. Admit a certain amount goes on, but everybody knows that you can't admit you're doing that. And therefore there are real constraints on your ability to do it. And I think even the same thing for motivated reasoning, I think when you recognize that you've been engaged in motivated reason, or you're confronted with it, you feel some amount of embarrassment, a need to like, prove that you're not being overly motivated.

Adam Chilton: Yeah. I guess, I don't know. I mean maybe. But no, I think that in a lot of these cases, there's some text of the constitution, some precedent is built up over time about what that is. And then we all have strong views about what will produce the better policy consequences, based on whatever criteria it is that we care about. And it just so happens that that colors whether or not we think this is the kind of case or the precedent is really important and useful, or not really important or useful, or the text really is quite ambiguous or not, because we're all trying to decide whether or not we want to stick with some narrow version of the text or a broad version or whatever.

Will Baude:    Yeah. Okay. So, I agree with this picture. I am a legal realist, in addition to being an originalist. But part of what I like is how different this picture is than where we started like two episodes ago. So it's now not a picture of... There are a bunch of different possible ways you can interpret the constitution and we've usually done it in this way. And why should we do this new, crazy way?

            Now we have a picture of, we have this widespread way we talk about interpreting the constitution. That's like, when you actually, what you say you have to do. And we recognize that all of us are imperfect, and all of us are not living up to that as well as we could. And now the question is, what should we do about that, right? Should we... Like, then you might see what originalism is, is a project of trying to hold people what they actually claim to believe in. Which would be asking people to somewhat reduce judicial discretion, motivated reasoning, judicial cheating, and living up to some shared standard of law.

Adam Chilton: I now think that you could be making two different kinds of arguments. Which is... Kind of argument one is 20, 30, 40, 50 years of ago before you and I are meaningfully on the scene and part of these debates, law professors advanced arguments about what the project of the Supreme Court should be. And the role of Supreme Court and constitutional decision making should be that were explicit about the values that the court should be using, that were extra constitutional to make their decisions.

            And so like for instance, John Hart Ely comes to mind of saying that what the court should be doing is about protecting the political process and that that should be the role of the court, and so it should see its roles as the safeguarder of democracy, and it should issue these decisions, not those decisions because they're justified by some sort of political theory. And I see, I don't know, and this is not my area, but it feels like Eli had to work in and a range of other people were engaged in this project of sort of starting from, first moral principles to think of what the role of a constitution and a court should be, and then saying that you should issue decisions to advance those moral principles, something like this.

            So one thing you can be doing is being like, those kinds of views on what the role of the court is, are all sort of silly because their role is just to figure out what the law is and then issue opinions based on that.

Will Baude:    Yeah, that sounds great.

Adam Chilton: Okay. If you're arguing against those guys, I'm not in a huge hurry to defend that, because I think a lot of that, a lot of that stuff was weird public law fever dream, and why people like me think that so much of public law scholarship is basically nonsense. However, that's one kind of argument you could making. The other kind of argument you could be making is if in any individual case, when people appeal to originalism and say like, "Here is the answer to how we should think about Citizens United or Heller or whatever else."

            And just act as if like there is unanswered that is clear based on some that found these documents from 1788 and say, "Wow, before the constitution was ratified, actually in New Jersey, they had a militia, therefore you can't have, like can't gun control in Chicago." I think like, this is just crap. This is way different than saying that there's some limits on what the court can and cannot do. This is just like a set of evidence that people have decided to prioritize over other sets of evidence. And it's the latter thing that I think is... So maybe you've moved the debate, a huge amount to get someone like me to say that the [unintelligible 00:47:47] views, isn't what the court should be up to. But to get me the next step to be like we should be going Thomas and Gorsuch and thinking that we've got privileged arguments about reversing the modern administrative stake, that I'm not following.

Will Baude:    Okay, good. So, I'm happy about the first. I agree that's a big thing, but I, right, that I'm also just in the second, but that argument you made sounded bad. I assume it was intentionally designed to sound bad.

Adam Chilton: Yeah. No, that was to characterize your position. Yeah.

Will Baude:    Okay, good. I want to at least get the, the narrower wedge in that, even in a case like Heller or Citizens United, at some level, the arguments are still hostage to the historical evidence. That sort of a consequence of having ruled out all the other things, is that there's some kind of implicit premises going on there that involve like actual historical questions of what the law was back then. And so at some level its hostage to the evidence. It doesn't sound like "New Jersey had a militia once, therefore..." Was a very good argument.

            But for somebody who thinks the second amendment... Deciding what the scope of the second amendment is, there's like set of steps in which everybody is trying to trace their arguments back to the founding. Maybe it's they want to say the second amendment was originally understood to be ambiguous. That's a historical question. And then they want to say that within the ambiguity, it's legitimate to consider public safety. That's a historical question. Both of those assumes to me are plausible, but not obviously right, but that there's some rules for history to answer even individual Supreme Court cases about big topics. Hopefully in a smart way, rather than a dumb way.

Adam Chilton: Got it. Okay. But you still think then if the second amendment required something, even if precedent that it built been built on an incorrect premise 150 years ago. And we had case after case after case that followed from that incorrect premise, best move is to just like, get rid of all of that subsequent precedent and go back to whatever the initial correct outcome is.

Will Baude:    If it's sufficiently clear that it was wrong. Yes.

Adam Chilton: Yeah. And I assume though, that we'd have to be pretty Bayesian about this, in that this is all of these other people's views and opinions and ways that they've settle these and the settled opinions. That should be really powerful evidence that we shouldn't do this lightly.

Will Baude:    Yeah, I think so. I saw it. So I think the right way to be Bayesian about that kind of thing is especially with the views of people who were trying to ask the same question you're asking. So if back to our earlier conversation, if you think that a bunch of those precedents were decided by people who didn't care about meaning of the constitution, that were just like results oriented and they're open about that, then you might give their views less weight, over the people who buy all evidence for trying good faith to answer the same question you're an asking. Yeah. It should take a lot to be willing to go against consensus or like good explanation of what new evidence you have to update et cetera, et cetera.

Adam Chilton: And for instance, we think that running a big modern country is impossible to do without something that looks like the administrative state. So we shouldn't just willy nilly starts striking down the various doctrines and laws that make that possible.

Will Baude:    Sure. We shouldn't. We shouldn't do anything willy nilly. And even better, there was an administrative state at the founding as people like to point out. So obviously the whole administrative state's not unconstitutional.

Adam Chilton: What, because we had like a postmaster general or something, or-

Will Baude:    We had delegated authority to the postmaster general, but also to like tons of tax assessors, running around, trying to figure out how to run the first direct tax, steamboats. It it's weird because people like to both simultaneously say originalism will destroy the administrative state and also originalists are hypocrites because they don't pay attention to the evidence of history of the administrative state. But there's tons of stuff like that. So, now the question is what adjustments would we have to make? And I wonder if-

Adam Chilton: Yeah, both of... By the way, both of those arguments against originalists sound right to me, which I didn't know about the hypocrites one, but now I'm on board with that too.

Will Baude:    They don't have the courage of their conviction to destroy the country.

Adam Chilton: I think the problem is too many too. Right.

Will Baude:    Maybe we should talk about some examples and applications. We should [crosstalk 00:51:38] come up with like three or four. Like, okay, where would this actually take us questions?

Adam Chilton: Good. Let's do it.

Will Baude:    And walk through them and whichever ones you're worried was worried about.

Adam Chilton: Give me some examples.

Will Baude:    Well, I mean, may have to do it... We have to do it next time. But so we can do the administrative state. We could do, I don't know, you want to do what we do the administrative state right now. We could do what else?

Adam Chilton: You know? All right. So my instinct actually is that we should stop here. If there's one or two questions, we could take one or two questions, we should stop the recording and start next time with the examples that might be better.

Will Baude:    Sounds good. So anybody out there have questions they want to get in? I realize we've just been prattling on. All right. Speak now forever hold your piece, or until next week when Adam tries to destroy the administrative state and I try to save it right.

Adam Chilton: This was good.

Will Baude:    Thank you everybody. See you guys. Thanks for coming.

            Thanks for listening. And don't forget to share, hit subscribe, and review wherever you get your podcasts. Make sure to also check out the other Dissenting Opinions episodes where I talk with top legal minds about a Supreme Court case they believe is misunderstood. Finally, if you're looking for more current SCOTUS talk, check out Divided Argument: An unscheduled,  unpredictable Supreme Court podcast hosted by me and Dan Epps.