The Volokh Conspiracy

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Volokh Conspiracy

My argument with Richard Posner about originalism


One of my teenage dreams was to someday get into a written argument with Judge Richard Posner. And one of my more recent dreams, starting some time in law school, I think, was to publish an article in the Green Bag. So I am tickled to report that earlier this month, with the help of my co-author and partner in crime Steve Sachs, I managed to do both those things at the same time.

Here is a taste of the initial Richard Posner piece that provoked our reply, with the kind of title that only Richard Posner could get away with: "What Is Obviously Wrong With the Federal Judiciary, Yet Eminently Curable, Part II":

…And so "originalism" is nonsense, as the evidence shows and even some leading originalists come close to conceding—William Baude, for example. In a recent article he advocates what he calls "inclusive originalism." By this he means that any judicial decision that does not violate the original meaning of the Constitution (or of an amendment to the Constitution) is originalist and therefore lawful. He is thereby enabled to describe the decision holding that there is a constitutional right to same-sex marriage as an originalist decision, even though it has no constitutional pedigree.

And here is part of our reply, "Originalism's Bite":

This confusion over falsification is evident in Posner's complaint that it's ridiculous to describe Obergefell v. Hodges as originalist when it "has no constitutional pedigree." Posner's assertion reflects an intuition that the Court misunderstood the law that the Fourteenth Amendment established, or misapplied this law to the facts, or something. It suggests that the Court was wrong to say that "[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning." This passage makes a claim about the law in 1868; to assert it is to make a constitutional, originalist case for Obergefell. To deny it is also to make an originalist case, this time against Obergefell—and to recognize the falsifiability of originalist claims.

(Indeed, we see originalism as actually rather good at distinguishing good arguments from bad ones. It's certainly better at doing so than "pragmatism"—under which it's wickedly difficult to tell whether its practitioners are doing it right or wrong, especially in Posner's hands.)

Our main point is this: General theories, open to a wide variety of facts, can be highly demanding once you fill in the details. The scientific method doesn't prejudge whether the moon is made of green cheese. But the scientific evidence for that claim is terrible, and applying the method should tell you so. That claims can be labeled terrible only after examining the evidence is a strength of the method, not a weakness. The presence of lunar conspiracy theories or crank claims about quantum physics doesn't show that tools like space exploration or particle colliders lack bite; on the contrary, space exploration and particle colliders show the conspiracy theorists and cranks for what they are.

We were also responding in part to Eric Segall's "Originalism as Faith," as well as a recent book by Jim Fleming.

In any event, we provoked a sur-reply, by Richard Posner and Eric Segall, called "Faux Originalism." (It's contained in the last few pages of this "micro-symposium".) Here is a bit:

Baude and Sachs say that "originalism supplies many resources for deciding cases and resolving ambiguities, like precedent and liquidation and common-law backdrops." That can't be right. A precedent is a decision; all decisions interpreting the Constitution postdated it, obviously. They continue: "it's not enough for a judicial opinion to simply avoid disparaging originalism while deciding a case some other way; it has to use a methodology that's itself pedigreed to and permitted by the founders' law." What on earth does "pedigreed to" mean? But "permitted by the founders' law" is intelligible, and Baude and Sachs concede that "the founders' law" permits constitutional decisions that the founders would have considered unconstitutional. Is that originalism? None of the decisions cited by Baude and Sachs, from Blaisdell to Brown to Lujan to Obergefell and beyond, used the "resources" of originalism to decide cases; nor did they deem themselves bound by "consequences of theory and history." The judges either ignored history (e.g., Lujan) or rejected it (e.g., Brown). The entire, long history of constitutional adjudication by the Supreme Court demonstrates that originalism does not supply "resources for deciding cases and resolving ambiguities," as those decisions and resolutions must reflect contemporary concerns.

Perhaps Professors Baude and Sachs are trying (either consciously or subconsciously) to figure out a way to reconcile Scalia's (and Justice Thomas's) off-the-Court statements about originalism with their actual votes by calling non-originalist decisions originalist so that everything is originalist. Then, and really only then, could we say that Scalia and Thomas were not hypocritical when they consistently voted to strike down laws without any reasonable basis in text or history. If so, we doubt the thesis that originalism is our law will stand the test of time.

Even though both of our pieces quite short, it's hard to do them both justice in a couple of paragraphs, so if you're intrigued, please read the whole thing.

[P.S. Interested in originalism but not quite following along this stage of the debate? Here is a roundup of my earlier co-taught seminar on this subject, and here is a short exchange on "The New and Old Originalism." Both might be good places to start.]