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.