Originalism as a theory of legal change.

• Author: Sachs, Stephen E.
• Position: II. Originalism as the Founders' Law B. Originalism and Legal Change 2. Changes Since the Founding through Conclusion, with footnotes, p. 852-888

2. Changes Since the Founding

   The Founders' rules weren't fixed in amber. We've altered them in innumerable ways, even on foundational matters. In our legal practices, though, one reliable way to defend those changes is to present them as authorized, rather than unauthorized--as continuations of the Founders' law rather than departures. In other words, it's part of our higher-order legal rules to accept what's lawfully done under the Founders' rules as law.

   Often we explain important developments in our law by describing them as applications of unchanging rules to changing facts. When we can't do that, because it's impossible to deny that the law has changed, we defend the changes under lawful rides of change, whether rooted in the Founding era or added since. And when that won't work either, because the law has clearly been violated, we rely on various doctrines found elsewhere in the law to cure the violations or to prevent them from causing more mischief. Even stare decisis, the most prominent arrow in the nonoriginalist quiver, commonly functions as one of these "domesticating doctrines"--and is commonly rooted in Founding-era sources. The point is not, or at least not yet, that these are the only kinds of arguments we can make. The point is that these arguments are thought to be successful, partly because of their connection to the Founders' law.

   a. Rules and Outcomes

   One familiar feature of legal rules is that the same rule can produce changing outcomes over time. Rules usually take account of various facts about the world; when the facts change, the outcomes change too. (122) As a result, when we try to explain a legal development that differs from the Founding era, arguing that it's simply a change in application is usually taken as a good argument, even if the outcome diverges from the Founding generation's specific plans or intentions.

   Legal rules can take as their inputs (or incorporate by reference) a variety of different things: empirical facts about the world, mathematics, social customs, other legal systems' rules, perhaps moral judgments, and so on. (123) At risk of belaboring the obvious--though it's led a few scholars into confusion(124)--if these things evolve over time, so does the law. In states that have adopted the Uniform Commercial Code, for example, implied warranties arise from the "usage of trade"; (125) as trade usage develops, so will the legal obligations of buyers and sellers. The Constitution forbids habeas suspensions "unless when in Cases of Rebellion or Invasion the public Safety may require it"; (126) public safety might require a suspension at time t1 but not h, and then again at b. And when the amount of trade across state lines expands beyond the dreams of the Founders, so will the significance of the power conferred by the Commerce Clause, (127) even leaving the scope or nature of that power entirely the same. These trends may stray very far from the Founding, but that's only because of the particular inputs that the Founders chose to make significant. To paraphrase Christopher Green, the choice of one legal rule over another "is a choice about what sorts of changes should make a difference." (128)

   More importantly, when this distinction is offered in constitutional arguments, it goes a long way toward providing a legally acceptable account of change. In defending the New Deal, for example, Franklin Roosevelt argued that the Framers "used specific language" for some purposes and "generality, implication and statement of mere objectives" for others--allowing the law, "within the Constitution, [to] adapt to time and circumstance." (129) On commerce, taxes, and spending, Roosevelt said, the Framers intentionally chose "broad and general language" that was "capable of meeting evolution and change." (130) Roosevelt didn't have to make this argument; he could have said, as many Progressives did, that the preexisting law was constraining and outdated and might need to be cast aside. (131) But that would have been visibly contrary to existing legal norms, in a way that applying existing law to new facts was not.

   For another prominent example, consider Brown v. Board of Education. (132) Some people treat Brown's statement that "[i]n approaching this problem, we cannot turn the clock back to 1868" (133) as an official rejection of prior law by the Court. (134) But that statement merely describes current facts about education as inputs to a rule about equality. "[T]his problem" is "the effect of segregation itself on public education," (135) and in solving it, the Court quite obviously "must consider public education in the light of its full development and its present place in American life." (136)

   This kind of explanation is a standard feature of controversial decisions. When the Court upheld a state debt-relief law under the Contracts Clause, it didn't assert any new emergency power to respond to the Great Depression. Instead, it claimed to be applying implicit limitations already found within the Clause, whose "prohibition is not an absolute one." (137) When the Court expanded the ban on poll taxes to state elections, it claimed to be applying an unchanging requirement of equal protection in light of the "[n]otions of what constitutes equal treatment" that "do change." (138) For present purposes, whether the claims in these two cases were true--or even sincere--is less significant than the fact that they were made. In fact, from a positivist standpoint, they might be even more relevant if they were insincere, because they display the felt pressure of a conventional norm not to depart from preexisting rules. (139)

   b. The Founders' Rides of Change

   When it's clear that the law really has changed, over and above a change in applications, it's part of our practice to accept and defend those changes based on lawful rules of change. The Founders might not have planned on slavery's abolition, income taxes, or women's suffrage, (140) but they included an Article V that made those things possible. They might have been repulsed by the idea of a standing army, but so long as the budget is reapproved every two years, nothing in the Constitution stands in its way. (141) These are entirely conventional means of legal change, but an awful lot has been accomplished through them.

   The range of potentially lawful changes since the Founding may be even broader than most originalists are used to. To find out the Founders' law, we have to apply our positivist toolbox to facts about the past. To find out their rules of change, and what changes have actually been made under them, we have to look and see. This means that the rules of change--and the sorts of lawful changes that have been made--depend on history, not constitutional theory, and could upend some conventional views of originalism.

   Some people argue, for example, that under the Founders' law, "a regular course of practice" could (as James Madison put it) eventually "liquidate & settle the meaning" of obscure provisions in the Constitution's text. (142) If, according to our positivist toolbox, the right people shared this belief in the right way, then it could have reflected an actual Founding-era legal rule, and it could allow certain post-Founding conduct to determine the Constitution's legal content. That might seem antithetical to originalism, which is often portrayed as having laser-like focus on the Founding moment. (143) Yet this analysis is focused on the Founding moment; the question is what the law was then. The only reason why liquidation might be lawful, on this picture, is that it was already part of Founding-era law, or was lawfully added by something that was.

   This kind of originalism was on display in NLRB v. Noel Canning, (144) when the Court faced a potential conflict between constitutional text and post-Founding practice. At oral argument, the Solicitor General suggested that practice could trump clear constitutional text. (145) Not one Justice took that view. In fact, though the Court majority found the text ambiguous, (146) it didn't simply declare that tradition, as an independent source of law, could govern in its stead. Rather, the Court took pains to emphasize the Founding-era support for letting tradition play this subsidiary role--citing Madison on liquidation, John Marshall on government practice, and related precedents back to Stuart v. Laird. (147) In other words, it was willing to treat post-Founding tradition as a source of law because doing so had already been authorized at the Founding.

   This openness to Founding-era rules of change is an important aspect of our legal practices, because it allows people with many different methodological commitments to seek shelter in the Founding. Stephen Griffin, for example, takes a rather dim view of modern originalism, but he also argues that "each contemporary method of interpretation is the result of a tradition that extends back at least to the adoption of the Constitution"; he describes his preferred "pluralistic theories" as justifying a menagerie of interpretive methods on the basis of "source[s] of law that preexisted the Constitution, such as statutes and the common law," which are "understood to be legitimate" in our legal system. (148) Other people sometimes argue, relying on similar intuitions, that the Founders recognized an amendment process outside of Article V, (149) that they had a common-law constitution, (150) that they accepted "active liberty" as a constitutional principle, (151) and so on.

   From this Article's perspective, all of these can be originalist arguments. (152) If you want to argue that some novel method of legal change was part of the Founders' law, go ahead; originalism is a big tent. But your argument only makes a difference if it's true. Someone trying to assert an unusual Founding-era rule has to be ready to show that it was actually law back then, not just political theory or social custom, (153) in a way that'd satisfy...