ORIGINALISM OFF THE GROUND: A RESPONSE TO PROFESSORS BAUDE AND SACHS.

• Author: Segall, Eric J.
• Position: William Baude and Stephen E. Sachs, Northwestern University Law Review, vol. 113, p. 1455, 2019

Professors Will Baude and Stephen Sachs are a legal realist's worst nightmare. In their Northwestern Law Review essay "Grounding Originalism," (1) they continue their Arthurian quest o convince the legal world that originalism has been and currently is our law. They denote this effort a "positivist" account of our legal practices and claim theirs is a more accurate description of constitutional law than competing theories such as common law constitutionalism and pluralistic decision-making. Although they discuss H.L.A. Hart and contemporary philosophers, they concede that "the more enduring dispute between us and many of our critics is far more banal: it's a simple empirical disagreement. Maybe our beliefs seem odd . . . because other readers don't see how our existing legal practice grounds a form of originalism." (2)

As one of their critics, (3) our disagreements, far from being "banal," implicate fundamental principles of constitutional interpretation and judicial transparency. To legal realists, and most political scientists who study the Supreme Court, originalism is just one of many methods of constitutional discourse, and only a slight one. Far from being our law, originalism is used by judges mainly as a rhetorical device to justify decisions reached on other grounds. (4) There is substantial data, as well as detailed descriptive accounts by experts, that strongly suggest that where judges have legal discretion, their values, experiences, and politics determine the sum and substance of our law. (5) Those values, experiences, and politics, as this essay will show, do not reflect the values of people living in 1787 or 1868, or the law of that time, but our judges' values today. The weakest aspect of Baude and Sachs' recent essay, and their other detailed and complicated efforts to portray originalism, not just as part of our law, but as our law, is their failure to wrestle directly with legal realist and political science critiques of judicial decision-making.

In Grounding Originalism, Baude and Sachs describe constitutionalism at such a high level of abstraction that they fail to see how non-originalist values drive the substance of our actual law. They also concede that "originalism can be a correct descriptive account of our legal system, even if few people would currently describe our system that way.'" (6) That claim does not sound in legal positivism, which presumably requires an account of how people actually think about, describe, and then act towards our real legal practices on the ground.

This essay starts by summarizing Baude and Sachs' arguments. Then it shows that their account, ironically given their self-professed positivism, fails to wrestle with court decisions on the ground. They try to make up for that failure by claiming judicial decisions aren't law, and by categorizing obviously nonoriginalist opinions as originalist, but they are mistaken in both views at least to the extent they purport to care about how constitutional law operates as opposed to philosophic and linguistic academic debates far removed from legal practice. This essay concludes that if Baude and Sachs are going to continue their zeal to claim originalism is our law, they inevitably must directly address the legal realist account of judicial decisionmaking and show why it is inaccurate.

1. THE CORE CLAIMS

   In Grounding Originalism, Baude and Sachs distill their prior work into three "core claims." First, "[t]heories of legal interpretation ought to give more emphasis to questions of law. Whatever a theory's conceptual elegance or normative attractions, it also matters whether that theory already reflects our law, or is instead a call for law reform." (7) Second, "the particular rules of our legal system happen to endorse a form of originalism. Our law today incorporates our original law by reference." (8) Third, "[t]he binding force of our original law has important consequences for the present day. . . . The original-law approach may be capacious in theory, but it's exacting in application." (9)

   These three "core claims" can be summarized as follows: A theory of legal interpretation must reflect our actual practices, not recommendations for changing those practices. Our legal system as it has existed and currently exists is one of originalism, meaning our law is the founders' law until it is lawfully changed according to well-accepted principles approved by the founders. This claim does not mean that legal outcomes never change but rather they must change in accordance with the founders' rules for how legal change can occur. Baude and Sachs also argue that this descriptive account can be accurate even in the face of a strong pattern of non-originalist judicial outcomes. (10)

   Despite non-originalist decisions, they argue, we measure and discuss constitutional law cases in the context of originalist arguments and evidence. Moreover, they claim that "[o]riginal meaning sometimes explicitly prevails over policy arguments in constitutional adjudication, but the reverse doesn't seem to be true," and "there are no clear repudiations of originalism as our law in the current canon of Supreme Court cases, even in situations where the Justices must have been sorely tempted." (11)

   In sum, our law is the original law, as changed according to the original rules for change, and the important participants in our legal and political systems act as if both accounts are true.

2. THE ORIGINAL LAW ISN'T OUR LAW

   Baude and Sachs' description of originalism's place in our current law does not reflect how the American people, nonjudicial governmental actors, and judges participate in our legal and political systems. I have argued, as have others, that the Court's constitutional law jurisprudence is far removed from our original Constitution, as amended, and the day-to-day operations of our law are not the "founder's' law." (12) The examples of country-changing non-originalist Supreme Court decisions fill casebooks, treatises, and law review articles. For example, University of Richmond Law Professor Jud Campbell recently and persuasively argued that the Court's complicated and comprehensive common law free speech doctrines have not been justified (and probably could not be justified) by the First Amendment's original meaning. (13)

   Although there have been a few valiant efforts to the contrary, the dominant academic view is that Brown v. Board of Education is also inconsistent with an originalist method of constitutional interpretation, (14) as are the recent same-sex marriage cases." (15) Baude and Sachs themselves have previously listed a bevy of important cases they think might be inconsistent with the Constitution's original meaning, including Reynolds v. Sims' blockbuster one-person, one-vote holding, the Court's standing doctrine as articulated in Lujan v. Defenders of Wildlife, and many of the Court's important commerce clause cases giving Congress almost unlimited power to regulate local economic activities. (16) I could, and I'm guessing they could, go on and on, and then on some more.

   If this much of constitutional law is non-originalist, how can originalism possibly be our law? Baude and Sachs make two specific responses and one general one. Their first rebuttal, fleshed out in greater detail in other works, is that some decisions that most scholars label non-originalist actually derive from originalist criteria and reasoning (even if they are right about this, which they are not, as noted above they too have pointed to a hefty chunk of non-originalist decisions). Thus, in a prior work, Baude argued that Obergefell v. Hodges, (17) despite language which many interpret as rejecting originalism, actually embraces originalism. Here is the language in question:

   [T]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did...