A POSITIVIST, BASEBALL-CENTRIC CRITIQUE OF ORIGINALISM.

• Author: Blake, William D.

INTRODUCTION

The (2) Constitution invests the Supreme Court with two related powers: discretion and finality. The Constitution contains open-textured language, which creates disputes on which the Court typically has the last say. As Justice Robert Jackson once humbly observed: "We are not final because we are infallible, but we are infallible only because we are final." (3)

The baseball rulebook provides similar powers to umpires. Judgment calls are final; they cannot form the basis for appeal or protest. (4) Even with the creation of instant replay, overturning an umpire's call requires a finding of "clear and convincing evidence," which provides a strong presumption that the call on the field was correct. (5) Umpires, like judges, have considerable power in light of the irrevocability of their decisions. For example, the Official Baseball Rules (OBR) warn players and managers that they will be ejected from the game if they quarrel over an umpire's strike zone. (6)

Finality is problematic if sports officials abuse their discretion. Consider a (perhaps apocryphal) story of a rookie pitcher who experienced unfair treatment from Hall of Fame umpire Bill Klem. On a two-strike count, the pitcher's offering to Rogers Hornsby, another Hall of Famer, caught the strike zone. Klem called it a ball, and the pitcher complained. When Hornsby smashed a home run on the next pitch, Klem told the pitcher: "See, Mr. Hornsby will tell you when it's close enough to be a strike." (7)

QuesTec, a computer system that tracks pitches, now holds umpires accountable for the consistency of their strike zones. (8) When it comes to the Constitution, proponents of originalism also seek to limit the discretion of judges. According to originalists, a "living Constitution" creates inconsistencies in our fundamental law, analogous to the arbitrariness of Bill Klem's strike zone.

Many judges and legal academics, on the ideological right and left, believe originalism is a valid theory of interpretation to be used on some occasions. (9) Nevertheless, judges will sometimes uphold other legal principles, like stare decisis, at the expense of their preferred interpretive method. Even Justice Antonin Scalia famously called himself a "faint-hearted" originalist. (10) Scalia stated that if he were on the Court during the 1930s, he would have struck down the New Deal as inconsistent with the Founders' view of federal power. However, his less zealous commitment to originalism allowed him to prioritize stare decisis in many cases involving federal regulatory power. (11)

The more controversial question within legal theory is whether originalism is the only valid interpretive approach. Some scholars have argued that respect for the Constitution compels judges to adopt originalism. (12) Abuses of judicial review, these scholars argue, create new constitutional provisions through illegitimate means. A living Constitution theory of interpretation also undermines respect for the supremacy of the Constitution, as established by the text.

One reason why the notion of "compelled originalism" is so provocative is that it implies every non-originalist precedent is unconstitutional. This approach to interpretation has no room for "faint-hearted" originalists who are willing to yield to the prudence of stare decisis. As Professor Michael Stokes Paulsen has argued, "Stare decisis not only impairs or corrupts proper constitutional interpretation. [It] is unconstitutional, precisely to the extent that it yields deviations from the correct interpretation of the Constitution!" (13)

This Paper evaluates the claim of "compelled originalism" by comparing the language of the baseball rulebook to that of the U.S. and other constitutions. First, I describe how different rules of our national pastime align with originalism, while others invite umpires to use a living Constitution approach. I then leverage H. L. A. Hart's philosophy of legal positivism to evaluate baseball and constitutional rules. Hart claims public officials must accept the most fundamental rules of their legal system, which would include any guidance about how to interpret the Constitution.

Because "compelled originalism" is rooted in respect for the Constitution's legitimacy and supremacy, one would assume the text would instruct judges to be originalists. Of course, the Constitution says no such thing. By contrast, the baseball rulebook sometimes provides specific instructions to umpires about how to adjudicate certain rule violations. I conclude by demonstrating how originalists have managed to turn the debate over constitutional legitimacy on its head.

If the goal of originalism is to prevent judges from reading provisions into the Constitution, originalists must take seriously that no requirement to use original public meaning exists in the constitutional text. Because the Constitution does not instruct judges to interpret it as originalists, compelling originalism reads a provision into the constitutional text. By prescribing an interpretive method which the constitution does not endorse, originalists become the thing they most seek to avoid.

COMPARING A BALK TO OBSTRUCTION: A DIFFERENCE IN DISCRETION

The allure of originalism is that it attempts to view the Constitution as a series of rules. Rules limit judicial discretion because they reduce complex ideas to a checklist of things that are or are not allowed based on historical evidence. Advocates of a living Constitution, on the other hand, focus on the principles underlying constitutional provisions. Principles require elaboration and evaluation, which allows the reach of the Constitution to ebb and flow as different judges tackle new legal problems.

The Eighth Amendment's prohibition on cruel and unusual punishments provides a helpful comparison. In the 1950s, the Supreme Court adopted a living Constitution approach to this issue. The Court said it must consider "evolving standards of decency" in Eighth Amendment analyses. (14) In more recent cases, the Court has applied this principle, for instance, to prohibit the execution of adults convicted of any crime less than murder. (15) For originalists, determining the Eighth Amendment's meaning is more straightforward: that which was allowed at the Founding is allowed today. Fully committed originalists would have to uphold public floggings as a sentence for some crimes. (16)

Baseball reflects this interpretive debate because umpires must wrestle with principles in some situations and reflexively apply rules in others. In the remainder of this section, I analyze the balk, which umpires enforce in a rule-like fashion, and obstruction, which outlines a principle upon which umpires must elaborate. Each interpretive philosophy has the potential to anger baseball fans in ways that mirror the criticisms of living constitutionalism and originalism.

The 1845 Knickerbocker rulebook, the oldest in baseball history, contains the term "balk" but does not define it. (17) By the end of the nineteenth century, revisions to the Playing Rules of the American Association of Baseball Clubs made clear that the purpose of the balk rule was to prevent the pitcher from deceiving the runner. (18) However, the OBR does not announce a "balk principle" to the effect of, "Thou shalt not deceive the runner." Instead, the modern rulebook lists thirteen specific actions by the pitcher that constitute a balk. (19) One prong of this triskaideca-partite test holds that a pitcher balks if he "makes any motion naturally associated with his pitch and fails to make such delivery." (20)

There are two problems with this approach. First, the balk rule punishes pitchers' actions even if they do not...