For the Symposium on Mitchell N. Berman and Richard D. Friedman, The Jurisprudence of Sport: Sports and Games as Legal Systems (West Publishing 2021).
The jurisprudence of sports is not a jurisprudence of originalism. Officiating boards across the country have an officer called the “Interpreter.” The Interpreter of Board 40 (might have been 41) of the International Association of Basketball Officials (IABBO) in New Haven, where I was paying my way through graduate school as a sports official, insisted that “we interpret the rules in light of the purposes of the game so that no team gains an advantage in ways not intended by the rules.” This is purposivism. Other officials were textualists. The Interpreter of IABBO Board 10 on Long Island informed us that if an offensive player was in the lane for 3 seconds, we were to call a three second violation no matter whether the player was having any effect on the game. The three second rule from this perspective needed no more interpretation that the two-senator rule in the Constitution of the United States (the New Haven Interpreter disagreed). All interpreters were doctrinalists. Maintaining our precedents was vital. The pitch we call a strike in the first inning should be a strike in the last inning. No Interpreter was an originalist of any stripe. We might learn about what the framers intended when discussing a new rule just adopted that winter, but no Interpreter gave any instruction in history when discussing various vague rules such as the advantage rule in soccer (do not call a foul when doing so might disadvantage the fouled team) or unnecessary roughness in football.
THE JURISPRUDENCE OF SPORTS is not a jurisprudence of originalism. In a fascinating study, Mitchell N. Berman and Richard D. Friedman catalogue the remarkable number of jurisprudential issues that occur in the sporting world. Their text raises questions internal to sports about how these issues should be resolved and, as important, whether the way we think about the jurisprudence of sports ought to influence how we think about jurisprudence more generally. This is a text that will inspire numerous professors to teach a course in the jurisprudence of sports, both because of interest in the subject matter and because how thinking about sports may help us think about laws more generally. Professors and students who use THE JURISPRUDENCE OF SPORTS will learn much about interpretation, but little to nothing about originalism, public meaning originalism, living originalism, or any other originalism. Berman and Friedman discuss textualism and purposivism in their chapter on how officials interpret sports rules. The section on the role of practice is an implicit discussion of doctrinalism and precedent. Nowhere will the reader find a discussion of the meaning of the rules at the time they were ratified. Berman and Friedman point out that the ban on fraternization was one consequence of the Black Sox scandal of 1919, but neither the authors nor anyone else seems to think the interpretation of that ban depends on the public meaning of fraternization in the first quarter of the twentieth century. The origins of rules in sports is ancient history, important for the study of classics, but not for either players or officials.
In the spirit of THE JURISPRUDENCE OF SPORTS, we might learn something about sports from thinking about why no official cares about the original public meaning of sporting rules. The reasons range from an emphasis on consistency, the official as combining factfinding jury and law-declaring judicial roles, the lack of historical knowledge, and the absence of any claim that the founders of modern sports, who are deservingly celebrated for their achievements, have anything of value to contribute to contemporary debates over how the games they invested ought to be played. In the spirit of THE JURISPRUDENCE OF SPORTS, we might also consider whether the reasons basketball officials are not originalists suggest Supreme Court justices also should not be originalists. Consistency matters in constitutional law as well as in baseball. James Madison may have no more to say about running an administrative state than James Naismith, the person credited with inventing basketball in 1891, has to say about the best interpretation of the double-dribble rule during the 2022 National Basketball Association finals.
The first virtue of sports officiating is consistency. Officials should adhere rigorously to precedent. The pitch I call a strike for the visiting team in the first inning should be a strike for the home team in the second inning and a strike for everyone in the ninth inning. Only in the rarest instance should I decide to change my interpretation or application of the rules in the middle of a game. Players are far more concerned that they can identify what a strike is or how loosely I am calling hand-checks on defense in basketball than with whether my strike zone or understanding of legal defense over the course of a game increasingly corresponds with the understandings of the persons who drafted the rules of the game. Consistency goes far beyond making sure I adhere rigorously to an interpretation of the rules during the game. If two officials are working together, then they should strive to call the game the same way. Sotomayor and Alito must be on the same interpretive page when officiating little league basketball. When refereeing basketball, I typically had a long talk with my partner before the game to harmonize how we interpreted the rules. Again, players want to be assured that we will call tripping consistently, even though we what decide is a trip is not what a framer might have thought. I should make the same calls other officials in my area are making. If no one else in the league calls travelling when a kid takes an extra step to execute a fancy dunk shot in basketball, I should swallow my whistle as well, even as the framers bespeech me from their grave to call a violation.
Officials combine law and fact-finding in a system with very little appeal. In many games, particularly games played by inexperienced players, an official who called all violations would ruin the enterprise. As the late Rocco Valvano (Jim Valvano’s father for those who know their basketball) instructed new officials, “a good referee is a little bit blind and a little bit dumb.” You do not see the routine pushing and shoving that takes place when players jockey for rebounding positions in basketball. You ignore a player muttering a curse that only you can hear. Police officers behave similarly. Police departments do not investigate every crime with the same degree of seriousness. Police officers often do not make an arrest for every crime they see. Originalism is useless for determining when you enforce the rules as written. The rules may provide some guidance for when I blow the whistle and stop the game, but in almost all sports, knowing the point of the game, knowing whether one team is gaining an advantage in ways not intended by the rules, is far more important than know the original public meaning of a rule.
Referees must make calls quickly. Judges take months to resolve legal disputes and have clerks who can help them research. When I must interpret an ambiguous rule during a game, I must make my decision immediately. Textualism helps. I will know that “roughing the passer” is a foul in football. Purposivism helps. The point of the “roughing the passer” rule is to protect quarterbacks, who are vulnerable, and star players. No referee who witnesses a hard hit on a quarterback has the time to determine what “roughing the passer” meant at the time that football rule was adopted. We cannot email a clerk. We do not do historian investigations before the game. Most of us are part-timers and have other jobs. We are not going to spend our lives reading the fifty-four different drafts of the “roughing the passer” rule or the minutes of the rules committee that drafted that rule, even if those documents existed. Legal history is not part of an official’s training. We learn the text of rules and their purpose. No basketball refereeing clinic that I know of examines the history of hand-checking or the various drafts of the rules that people considered. Maybe there is a history of sporting rules out there that might be of some use to an originalist, but no referee that I know of is aware of the existence of such a document.
Officials who know something of the game’s history are likely to interpret rules differently. In part because officials are part-time and not professional sports historians, they are likely to interpret history as consistent with their preferences about how the game is played. Consider the roughing the passer rule. The main point of the rule may be to protect a vulnerable passer. The main point may be to ensure quarterbacks, who are the star players on most teams and big fan draws, are not injured. All the problems with determining the original meaning of "free speech" are likely to occur with interpretation the original meaning of "roughing the passer." If there is a conflict between the vulnerability and protect the star purposes, officials who know a little about history are likely to interpret the history of the rule as supporting their preferences on the purpose of the game. Is anyone surprised?
The persons responsible for the rules are not venerated for their timeless wisdom. James Naismith is in the Hall of Fame as the celebrated founder of basketball, but no one thinks that he discovered some fundamental sporting principle that should be kept in pristine form. The people who make the subsequent rule changes are nameless. Sports lack a John Bingham who is (falsely in my view) celebrated for fundamentally changing the rules of the constitutional game. Some people kvetch about the three-point shot in basketball or the designated rule in baseball, but broad agreement exists among officials that rules should be interpreted in light of how games are played at present. Just as no coach would adopt the popular football defenses of the 1950s, even if the men who devised those defenses are in the Hall of Fame, so no official thinks that the persons who made the rules in the 1950s discovered eternal truths about how the game is best played. When faced with difficult decisions, we do not commune with our ancestors and ask whether they would have considered a minor tantrum to be "unsportsmanlike conduct."
Judges have no more business being originalists than referees. The constitutional commitment to the rule of law is as much a commitment to consistency as an umpire’s commitment to maintaining the same strike zone throughout the game. Following precedent in sports and law provides the consistency that enables athletes and political actors to play the game. Pitchers and members of Congress can adopt strategies knowing the legal consequences of their actions. Neither athletes nor citizens can effectively plan when laws may be changed whenever a prominent legal historian writes an original article that supports a conservative position (I’m looking at you Justice Thomas), someone finds a letter from James Madison in an old attic, or a distant relative of Abner Doubleday (not really the founder of baseball) reveals on her deathbed the original meaning of the infield fly rule. As much divergence exists between constitutional rules on books and in action and sporting rules on books and in action. Nothing in originalism tells constitutional decision-makers when to apply and not apply the rules (the claim that judges should be more bound than elected officials to original meaning is a claim about how the constitutional game should be played, not a claim about the original meaning of the constitution). Judges are not much better at history than sports officials. Many judges have had no more formal education in the history of the First Amendment than basketball officials have in the history of the travelling rule. This lack of training means that when judges (or officials) engage in history, the result is likely to be substantial variance, which undermines the rule of law, and conclusions more consistent with the judge’s/official’s notion of good policy/play than the conclusions of trained historians. Most important, there is no more reason to seek guidance from the framers of the constitution than the framers of various sports. Sports evolve as do societies. If no sane person would think that officials should strive to interpret the rules of basketball in the spirit of James Naismith, why should a sane person think judges should strive to interpret constitutional rules in the spirit of James Madison.