Friday, July 17, 2020

Double Trouble: Optimistic Originalism and Baude and Sachs (Part V)

Stephen Griffin

This is the fifth and last post in my series discussing issues raised by my article “Optimistic Originalism.”  The article uses a historical lens to critically assess a recent trend in originalism which claims the theory is capable of handling a variety of problems posed by the modern jurisprudence of the Fourteenth Amendment, principally the equal protection clause.  In the process the article raises questions about how we should understand the scope of the achievement of those who sponsored and ratified the Reconstruction amendments.

In the last part of “Optimistic Originalism” I discuss why Brown is commonly viewed as a “living constitutionalist” opinion (Here and elsewhere in these posts I put living constitutionalism in scare quotes because I think the real issue is how to understand the process of constitutional change outside Article V).  I supplement the argument I provided in an earlier article called “Rebooting Originalism” as to why Brown was not and could not have been based on an originalist understanding of the Fourteenth Amendment.  In the footnotes I mention the idea, advanced recently by William Baude and Stephen Sachs, that Brown was in fact an originalist decision despite the Court’s apparent determination that historical evidence (a more neutral term than originalism) was no help.

Baude and Sachs evidently disagree with my argument about Brown, but for all the work they have done to this point, it is not clear why.  They label their position “originalism is our law.”  In what follows I will comment on their claims, particularly as set forth in their recent article “Grounding Originalism,” from the point of view of the position I take in “Optimistic Originalism.”

In “Grounding Originalism” Baude and Sachs make clear that saying “originalism is our law” means originalism (which version?) is a criterion for whether a law is valid in the present, “not a drafting guide or decision procedure.”  They stress the relevance of the “official story” we tell ourselves about how a given proposition of constitutional law is valid, a story that involves tracing validity back to the eighteenth-century founding (or Reconstruction of course, in the case of the Reconstruction amendments).  Although their critics have pointed to possible deviations from this official story (including Brown), Baude and Sachs respond that our legal system has “higher-order practices” that show originalism in some form is still the founding stone of our law.

For longtime passengers on the constitutional theory train, there are a number of puzzling features as to how Baude and Sachs go about making their claims.

The general tenor of the way they make their argument tends to collapse the distinction between the Constitution and ordinary law.  They use examples drawn from the common law or statutory law and simply assume that constitutional law works the same way.  But their analysis seems off-key for other reasons as well.  Last November Jack Balkin participated in a Federalist Society panel on originalism in which, consistent with his approach in Living Originalism, he described the Constitution as a “framework for politics.”  This is a fairly common view, but one finds no hint of it whatsoever in Baude and Sachs.  For them, the Constitution is for lawyers only.

A related puzzle is the absence of any sense that Americans have often transposed political conflicts to the constitutional sphere.  Surely it is apparent that Americans like arguing about political issues in constitutional terms.  In fact, it is a quality foreign observers remarked on from the beginning.  But this produces controversies of the kind historical evidence cannot definitively settle.  There are well-understood reasons for the failure of the text to be more determinative, among them that the Constitution was the result of political compromise, the corresponding ambiguity of many of its clauses, and the fact that certain key matters (such as the presidential removal power, the focus of the recent Seila Law case), were not discussed at all.

I suggest these puzzles relate to notable features of how Baude and Sachs make their argument.  They treat advocates of novel (“off the wall”) positions in constitutional law as if they were akin to criminals.  The reality that Americans have disagreed over the Constitution in good faith, relying on arguments seen as reasonable at the time, is missing.  One wants to reassure them that their fellow Americans are not criminals, we’re just engaging in something totally normal for our polity, which is advancing political and policy goals through constitutional arguments.  This is of course common ground with respect to important works of constitutional theory that, like Baude and Sachs, highlight the issue of constitutional change and (unlike Baude and Sachs) the role of political and social movements – for example, Bruce Ackerman’s influential We The People series and Balkin’s Living Originalism.

This avoidance of reasonable disagreement over the meaning of the Constitution leads to Baude and Sachs having a hard time with the notion of discontinuities in American constitutional history.  To be sure, here they have plenty of company.  They are surely correct that many contemporary lawyers and judges do see our history and “our law” as one continuous story we all have in common.  Fortunately for those of us who have the time to profit from it, constitutional and legal historians have come to our rescue, particularly since the 1960s.  I have literally never read a work of constitutional or legal history published since then which caused me to think the American constitutional story was essentially one of continuity.  That’s one big reason for my interest in the process of constitutional change.  But Baude and Sachs are undismayed by these findings.  To my way of thinking, in stating their claims they run this point right into the ground (I’m presenting only part of this list):

“(1) We treat the Constitution as a legal text, originally enacted in the late eighteenth century.
(2) This constitutional text regulates the selection of legal officials, even when such regulations are unpopular or contrary to tradition.
(3) Actors in our legal system don’t acknowledge, and indeed reject, any official legal breaks or discontinuities from the Founding.”

My target here is (3).  Before I describe why this constitutes a denial of the Civil War and Reconstruction (along with much else in our constitutional experience), we should wonder who the “we” and the “actors” are in this list.  Are Baude and Sachs appealing to contemporary views about the past or the views held at the time?  If contemporary views, this seems odd for an originalist theory.  If views held by past actors, well, you’ll have to trust me, but there is plenty of evidence that at various crisis points, Americans did in fact believe that the Constitution itself was in question and that the only way to resolve the crisis was to have a Second American Revolution or Founding presaging a fundamental constitutional departure.  If you value what historians think, there are plenty of examples like Charles and Mary Beard in the past and Eric Foner in the present who in fact regard the Civil War and Reconstruction as a “Second Founding,” as Foner recently put it.  In other words, that there was a fundamental and official “legal break” and discontinuity in American constitutionalism necessitating a refounding and, yes, thus a new Constitution.

Baude and Sachs’s position is an excellent example of what I term “Civil War denialism” which I see as quite widespread among judges and lawyers.  Civil War denialism is the treatment of the constitutional issues that surrounded the War (such as the constitutionality of slavery and secession) as if they could not be the subject of reasonable disagreement at the time.  For instance, in light of Mark Graber’s pathbreaking study of Dred Scott (a work too many constitutional scholars have apparently not yet read), a good example is simply accepting the Republican critique of that infamous decision as if there were no case to be made against African American citizenship prior to the adoption of the Thirteenth and Fourteenth Amendments.  As articulated in a memorable scene early in Steven Spielberg’s Lincoln, however, there is a reason we needed multiple and foundational amendments.

Insisting without qualification on the continuity of our constitutional experience arguably puts Baude and Sachs in poor company.  After all, in the wake of the Civil War the people who were most determined to assert legal continuity were former Confederates, not radical Republicans.  Here is what the Joint Committee on Reconstruction had to say in 1866 about an argument they made similar to that of Baude and Sachs:  “It is more than idle, it is a mockery, to contend that a people who have thrown off their allegiance, destroyed the local government which bound their States to the Union as members thereof, defied its authority, refused to execute its laws, and abrogated every provision which gave them political rights within the Union, still retain, through all, the perfect and entire right to resume, at their own will and pleasure all their privileges within the Union, and especially to participate in its government, and to control the conduct of its affairs.”  The Joint Committee knew a constitutional discontinuity when it saw one.

This point about constitutional argument in the wake of the Civil War serves to throw into sharp relief one signal characteristic of how Baude and Sachs make their case – they focus almost entirely on the world of case law, paying relatively little attention to the “Constitution outside the courts.”  But if we were to focus on the contested issue of presidential war powers, for example, what we would see (as I describe in my book Long Wars and the Constitution) is members of Congress and (at least former) executive officials openly acknowledging that the Constitution had to change informally outside Article V in order to meet the challenge posed by the Cold War.  Theories of informal constitutional change should help us understand how this could happen and, if at all, legitimately – but Baude and Sachs rule such theories out of bounds on originalist grounds.  As I argue in “Optimistic Originalism,” what we should be doing is asking how an Article V-driven positive law theory could have worked in an environment where everyone was trying to avoid making formal amendments out of a concern for political stability.

I think an extended analysis would show that Baude and Sachs continually oscillate between two sets of two poles simultaneously (perhaps I should have labeled this post “quadruple trouble”).  They assert that it is part of our system of positive law that the Constitution is the supreme law of the land (which no one disputes) and that this is equivalent to agreeing that an unspecified (though broad) version of originalism is the only method of interpretation that has a basis in the eighteenth century founding (which, as Jonathan Gienapp has recently shown, is false).

At the same time, they oscillate between insisting that any knowledgeable lawyer knows that originalism in their sense is our law (the “official story”) and that understanding its deep structure involves research into legal history with results potentially so esoteric that only a select few could understand the mistake everyone has made deviating from that same law for decades.  This actually somewhat parallels the structure of Ackerman’s theory, yet they reject it supposedly because it does not conform to the official story.

Baude and Sachs challenge their critics: “What, then, is our law? If not originalism, what? Positive law provides a lens to judge not only originalism but its alternatives.”  Here I think we should keep in mind that some of the most prominent alternatives to H.L.A. Hart’s theory (the theory that Baude and Sachs deploy), such as those from Ronald Dworkin in the past to Scott Shapiro and Mitch Berman in the present, are motivated in part by the differences the U.S. Constitution makes to our system of positive law.  Hart had no reason to take any strong notice of these differences and I, for one, doubt that theories of jurisprudence can make a strong contribution to debates in constitutional theory unless they are firmly grounded both in history and a historicist sensibility.

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