Originalism: A Deep Dive

a seven-episode mini series on originalist theory

As I mentioned earlier, my colleague Adam Chilton and I spent last winter recording a quarter-long conversation about originalism. Our basic goal was to work through a systematic argument for originalism together, with me advancing my theory of constitutional interpretation while Adam asked questions, expressed skepticism, and generally tried to understand the strong and weak points of the argument (without necessarily being persuaded by it).

All seven episodes are now up:

• Deep Dive Episode One: The Emergence of Originalism
• Deep Dive Episode Two: The Counterarguments
• Deep Dive Episode Three: The Positive Turn
• Deep Dive Episode Four: Applications
• Deep Dive Episode Five: Original Law Originalism
• Deep Dive Episode Six: The Oath
• Deep Dive Episode Seven: Politics

Comments/reactions to the whole series are welcome. (And sorry the audio quality isn't better.) I may do another one on a very different topic next year, like critical race theory or feminist legal theory, if I can find the right people.

Comments

[Rev. Arthur L. Kirkland]

Prof. Baude seems to be following the Kerr path.

Which means he’ll be leaving us relatively soon.

That is unfortunate (the departure, not the choice of path).

[Enrique]

Does the podcast address John Mikhail’s criticism of originalism, i.e. that most originalists end up applying their search for “public meaning” by selectively and inconsistently ignoring those parts and words of the Constitution that refer to natural rights.
See: https://priorprobability.com/2021/07/08/does-originalism-have-a-natural-law-problem-2/

[Sarcastr0]

The ‘positive turn’ that Will champions ends up not looking nearly so directive and amenable to outcome-oriented cherry picking as what I learned in law school.

IIRC, it does talk about enumerated versus nonenumerated rights some, and how rights in the Founding were much more a balancing test than rights nowadays, and what that means for the outcomes of applying originalism.

[bernard11]

I’m interested in this, but really dislike listening to podcasts.

Will there be a transcript?

[Will Baude]

Probably. We’ve been experimenting with different transcript options for another podcast, Divided Argument, and depending on how that goes, may try them here.

[Brett Bellmore]

I have to agree about disliking podcasts. I could read a lot faster than I could listen even before I developed bad tinnitus and started losing my hearing. Now the difference is stark, and I only expect it to get worse as time goes by.

I’d note that automatic transcripts are generally bad jokes in my experience. At best they might be viewed as a starting point for a manual transcript done by somebody who understands the topic.

[Will Baude]

Here’s what the Divided Argument transcripts look like: https://www.dividedargument.com/episodes/triple-bank-shot/transcript

[Sarcastr0]

It’s *really* good, everyone.

I’m trying to talk myself into doing a re-listen and posting like a cliffs-notes-disorted-through-Sarcastr0’s-bad-ideology-and-worse-notetaking discussion points in upcoming Thursday open threads.

Be more of the open thread intellectualism I’d like to see in this world.

[LawTalkingGuy]

Is there any serious engagement with academic history or the criticisms of professionals historians?

[Sarcastr0]

No – it’s not about the specific execution of originalism at all. Though it does go into the instrumental political use of originalism by the right for an entire episode!

[Alpheus W Drinkwater]

Yay, I finally found it! I guess you released these Deep Dives within the Dissenting Opinions podcast. If anyone else is having trouble finding it, that’s where it is.

I’m a little disappointed to read that they do not talk about the criticism of “law firm history” by academic historians, like Jack Rakove or Gordon Wood. I think therein lies originalism’s largest failing. It’s analyses are often selective and incomplete, just plucking out the historical tidbits that support the desired outcome. Profs. Tillman and Blackman are particularly guilty of this particular sin, in my humble opinion.

[CJ Libassi]

First – thanks so much for this. As a non-lawyer who is just interested in the law and a bit suspicious of originalism given my politics, I’ve found it very thought provoking and informative. I just wanted to put out there some thoughts I’ve had while listening.

Maybe it’s just a thing that’s too obvious to mention and doesn’t distinguish originalism from other modes of analysis, but I was surprised that the “linguistic” or definitional argument for originalism wasn’t more grounded in the notion of legitimacy or sovereignty. The basic idea I had in my head would be not just that “this is how we read any sort of prescriptive document,” but that in the particular case of constitutions – at least one like ours where different political entities with their own sovereignty before the establishment of a union – the legitimacy and sovereignty of the constitutional order flows from the fact that the parties to the union agreed to become a union under a specific set of terms and not some other set of terms. We know that because they considered and explicitly rejected many other sets of terms for forming the union. But that basically, originalism is the project of enforcing the original terms of the agreement that created the union. And yes, there’s room within that framework for allowing interpretation and evolution insofar as that was intended and allowed under the original terms of the agreement, but there’s no room for just changing the terms of the agreement after the fact to produce better outcomes or a more practical system to administer or whatever because that undermines the original terms on which the union was formed.

I think there’s a lot of sense in that basic argument, but it’s also seems not to permit any instrumental arguments. And I know you present the instrumental arguments for originalism for expository reasons, not because you think they’re the best arguments in favor of the practice. But I think it’s worth putting a fine point on how much if the “terms of the contract” theory of originalism is right, the instrumental arguments are totally irrelevant. And I think maybe it’s better for originalism if the instrumental arguments get less attention, I guess because I don’t find them very persuasive. One thing I think is missing from the discussion of the comparative instrumental value of originalism is the idea of error correction. It may well be true that the policy judgments of judges are more likely, on average, to produce worse results than highly consensus constrained democratic processes (not obvious to me, but not implausible either). But my instinct is that would be true if we were talking at any given point in time or on a specific issue. But one advantage the present and future have over the past is that they can learn from the mistakes of the past, and so judgments that occur later in time ought to be, on average, better than ones that happened in the past. And I guess that’s why I worry about originalism the most; it locks us into a constitutional order that has very limited error correction mechanism.

And by this, I don’t mean the methodology of originalism isn’t error correcting over time – yes our historical understanding can improve with better and more information over time. But I mean that to a significant degree originalism implies that our constitutional system needs to stick to the original rules laid out by founders or the ways of fixing the original rules that the constitution itself permits. And that amendment process in practice that seems to produce error correction at much too slow a rate to think that we aren’t ending up in a worse place (in terms of the quality of our policy choices) than we would if we had a more flexible approach to constitutional interpretation. Now, again, maybe all of that instrumental stuff is irrelevant for all the sovereignty reasons for doing originalism, but it seems like an important part of the instrumental arguments that we shouldn’t lose sight of if we are going to go there.

Thanks again! This was all sufficiently thought provoking to cause me to comment on a blog for the first time in a long time!