William Baude, “Is Originalism Our Law?”

you all for coming. Many of you in the room
probably already know this, but since it’s being recorded,
I should say I’m William Baude. I’m an assistant professor
here at the University of Chicago Law School. And the goal of
this talk is to try to say something new about
originalism, improbable though that may be. So right now, arguments
about originalism have become somewhat intractable
and they’re at a standstill. And these arguments tend
to take one of two forms. You may have heard of it before. One form is conceptual. So these are arguments
about whether originalism is inherent in the
nature of language, or the nature of written
constitutionalism. The argument often goes
sort of, it just is, part of interpreting
to try to figure out what the people who wrote the
text meant when they said it. If You’re doing something
else, if you’re not trying to get at
what they meant, you’re not really interpreting,
you’re not really reading. That’s just what
interpretation is. That’s the argument. Then there are responses
that say, oh, come on, haven’t you ever read a poem? You know, sometimes
you read things in a way that’s more
complicated, that’s different. And there are responses
back and forth. You can imagine how these
arguments spiral into nowhere. Other form are sort
of normative arguments about originalism’s ability to
serve some other value that we all care about. Maybe that’s restraining judges. Maybe that’s protecting liberty. Maybe that’s just
promoting general welfare at a cost benefit
sense, you’ve probably heard that around here. But these two are
kind of intractable, because, first of all,
there’s a lot of disagreement about what those values are. And even if we agree
on what the values are, it’s a really complicated
question whether or not originalism actually
serves those better than its competitors. So I propose that there’s
a third way forward, a different way to answer
all these questions. Rather than starting
with these normative or conceptual
questions, we should start with a more contingent,
a more lawyerly question, whether originalism is our law. And I mean that in a
positive descriptive sense, you know if you just
look at the law that’s created by our shared social
practices, by what our courts do, by what we, the people, do. Maybe that actually produces
something about originalism, maybe that produces a
better way to understand why originalism should be
binding in this country. Now, hopefully, if
you’re following, you’re looking at me like
I’m a little bit crazy. There are maybe two originalists
on the faculty of this law school, one of them is
right in front of you. There are only two originalists
on the Supreme Court, Justice Scalia and
Justice Thomas, right? So, how can this wacky position
be the law for all of us? Well, maybe it’s
not quite so simple. Justice Kagan was here recently. During her confirmation hearing
to become a Supreme Court Justice, she said, “We
are all originalists, but there is actually an
important sense about how we understand the
Constitution together that makes us all originalists.” That’s Justice Kagan,
not Justice Scalia, not Justice Thomas. More recently,
Justice Alito has also said that he’s a
practical originalist. That you take the Constitution,
that it means something, that that meaning
does not change, all the [INAUDIBLE]
provisions are broadly worded. And that, again, originalism
is the practice of all of us. So I think Justice Kagan
and Justice Alito are right. Let me explain how
that can be by trying to answer three questions. What is originalism? Is that our law? And where does that get us? Does that actually get us
past any of the debates that I just said
were so unpromising? OK, what’s originalism? Originalism requires
provisions in the Constitution to be given the same
legal meaning that they had when they were enacted. That’s just to
interpret the clause in light of its
original understanding, its original legal context. But that doesn’t mean
that every single decision about Constitutional
law has to be based on the strict
expectations of the framers. I mean, if you just look
at most judicial opinions you’ve read so far
in law school, right? Most of them, maybe
almost all of them, don’t spend a lot
of time talking about what did
James Madison think about this particular question. What did James Madison
think about video games? At the same time,
it also doesn’t mean, well– So why can
I say that originalism doesn’t require all that? It’s because originalism
actually has built into it, the Constitution
has built into it, a lot of flexibility, a
lot of open extra clauses, a lot of parts that,
themselves, ask us to look at other things that change. So what Justice Kagan said that
we’re all originalists, what she said right before
that was the Constitution contains a lot of broadly
worded principles. Sometimes it contains
something really specific. When it contains
something really specific, you do the very
specific thing it says. Other times it contains
broad principles, and then you apply
the broad principle. Sometimes that
requires you to look at how facts have changed,
how other things have changed. The examples we usually
give for this sort of thing are the cruel and unusual
punishments clause in the Eighth Amendment,
or unreasonable searches in the Fourth Amendment. Those seem to call upon some
kind of principled judgment that isn’t just a specific list. It isn’t the same
kind of specific rules as how does the
Electoral College meet or how old is the
President supposed to be or how many senators
does Illinois get? So first of all, being
a proper originalist means that sometimes the
Constitution, itself, invites a certain amount
of changing circumstances. And that was true at the
founding, so at the founding the first Congress met
and spent a lot of time debating the constitutionality
of various things that had to do. It was probably
their main activity. And they disagreed
about a lot of it, because the Constitution left
these things somewhat open. And there were a set of
other interpretive practices that were used to
fill in the gaps. Now they couldn’t help
but be originalists. They were the originals. It was still 1789, there was
no later time to be from. But their practices show
that even originalism allows a certain amount of other
kind of legal discourse in it. Similarly, originalism’s
always allowed precedent. From the beginning, courts
have used prior decisions, and a prior course of decisions,
to decide a case, rather than always just looking
directly at the text or directly at first principles. That, too, goes
all the way back. So originalism actually
allow some things that seem like they’re
not originalism. OK, now does that mean
that an originalism just self-destructed? Does that mean the original
meaning is one factor, but it can often be outweighed
by precedent, or justice, or other things? Well, not quite that either. So notice the way this works is,
again, the Constitution itself, the original meaning
of those provisions, sets up the difference between
the broadly worded clauses where other things
come into play, and the specific ones
where they don’t. So it’s not a matter of
looking at the Constitution and deciding that you don’t
feel like applying it today, or there’s some other thing
that’s more important than it. It’s the original
meaning, itself, that decides how ambiguous a
provision is, whether there is some ambiguity. And, similarly, these practices
I was just talking about, they also have an
originalist pedigree. So it’s not like
when the Constitution is vague or ambiguous, suddenly
you throw it away and move on to whatever your
second favorite method of interpretation is. The methods we use for
resolving ambiguity, for resolving vagueness, methods
of precedent, themselves, all trace their authority and
turn back to the founding. So rather than
seeing originalism as one competing method of
interpreting the Constitution, or one totally open ended
method of interpreting the Constitution, it’s
the supreme method. It decides what
other methods are OK. It decides how to
interpret its ambiguities and where those ambiguities are. That’s the picture
of originalism that Justice Kagan and Justice
Alito are putting forward. I think it’s the right way
to think about originalism. Now that we see originalism
in this new light, maybe you can start to see
why I might have said that originalism’s our law. So consider what happened last
year in Noel Canning vs. NLRB, an argument about the
Recess Appointments Clause, a clause the Supreme Court
had actually never interpreted before. So because the court had
never interpreted it before, judicial precedent
was off the table. But there was still a lot of
other interpretive problems, and in particular,
there seemed to be a conflict between the original
meaning of the clause, as laid out by President Washington
and his Attorney General and lots of other smart
people, and the practice that had started evolving only
a few years after that. And so right from the get
go, one of the Justices asks the government
about this conflict. They say, well, suppose we think
the original meaning is really clear in one direction,
and 200 years of practice afterwards are really clear
in the other direction. What do we do? Well, what’s interesting
is the first thing the government did was try
to fight the hypothetical. Well, we really don’t think the
original meaning is so clear, you know? That didn’t work
for very long, it’s very hard to fight
the hypothetical when the Supreme Court Justices
are pressing it on you. They’re even better than
Chicago Law Professors at that. But, the second thing the
government said was well, OK, in that conflict, we think
that the practice has to win. Clear or equal meaning
doesn’t matter. Well, what’s interesting is
that the court disagreed. What’s interesting is that every
single Justice in the Supreme Court, in the opinion
that resulted, said that that’s
not how it works. That you can only
look at this kind of subsequent course of
practice if the original meaning is ambiguous. If the original
meaning is ambiguous, then there was a founding era
understanding of something called liquidation, that lets
you look at subsequent practice and see how the branches
worked out the ambiguity. But two different opinions,
one by five Justices, one by four Justices, all agree
that the starting point is the original meaning and
that if the original meaning is clear, it’s the ending point. Now, that’s not the only
case that this happens. Actually, in case after
case, where the court looks at a conflict between the
original meaning and something else, it’s the original
meaning that wins. In a case with a
legislative veto, INS vs. Chadha,
the court, again, says the original meaning
requires a certain form of legislative procedure. They’re met with the argument
that this is a terrible idea, it’s impractical in light of
the modern administrative state, and so on. And the court says, that
might be true, but so be it. The original meaning wins over
modern views of a practice. Same thing happens in the case
about gun control, the Second Amendment, District of
Columbia vs. Heller. Again, the court finds
there’s an individual right to keep and bear arms. Again, the court is met with
a response from the dissent that this interpretation
will cause people to die, because gun control
laws save lives. And the majority
doesn’t say oh no, we don’t think so, we have some
studies to go the other way. They say that maybe,
we don’t care. The original meaning
of the Constitution takes off the table
the question of whether or not this right
is a good idea, they say. And there aren’t cases
going the other way. There aren’t cases
where the court says, well, the original
meaning requires this, but it’s just a terrible
idea and we’re not gonna do it anymore. The same thing happens
when original meaning [? flips ?] the precedent. There are all sorts of cases
where the court will reject a line of precedence because
the original meaning has just gotten too far from
the original meaning. Those cases were wrong
the day it was decided. Over and over again,
in these cases where different
methods conflict, it’s originalism that wins. Now, there are a
lot of cases where the court avoids the conflict. And there are a lot of
cases where the court says, here the original meaning is not
so clear, here it’s ambiguous, here we can look
at other things. And there are lots of cases that
people think of as not being very originalist. That’s Brown vs. Board of
Education or Blaisdell, a case about the
Contract Clause. The litany of anti-originalist
cases go on and on. But when you actually
look at them, when you look at the
cases that today remain are important canonical
cases, all of them have the same pattern. All of them,
actually, never reject the clear original meaning
of the Constitution. So Brown is the classic example. And the first several
pages of Brown begin with the original
meaning of the Constitution. And they say we called
for a special argument on the original meaning
of the Constitution, we’ve worked through it. We decided that the original
meaning is ambiguous for a set of reasons about what
the provision originally meant and what things have
changed since then. And because it’s
ambiguous, we’re gonna proceed to some other
methods of interpretation. But it’s exactly
the same structure. Originalism remains as the entry
point, the top of the Supreme method of interpretation. And when you consider all these
cases in light of the bigger picture, in light of the fact
that our Constitution is still written as if it were an
originalist constitution. It has the old date on it, it
has the old signatures on it, the amendments that
it has accumulated or the ones that are permitted
by its own processes. We carry that
around, we print it in the back of the
textbooks, we act like it’s the law, and the way it says. When you consider the way
legal interpretation works more generally, that in general,
legal provisions are enacted and then they stick around
until they’re changed through the same procedures. When you look at those
bigger picture facts and the specific
way that originalism is used in the courts,
especially the Supreme Court, the best picture that
emerges is that originalism is our law, in just the
sense Justice Kagan said. She was right. It’s not just one
practice among many, it’s not just one
way of interpreting the Constitution among many,
it’s first among equals, right? OK. So now where does that get us? If I’m right about all this, I
think it moves things forward, it changes the
terms of the debate in a subtle, but important way. Judges are not
just law professors in black robes, right? Judges have a duty
to apply the law. That comes from a
couple of places, the most obvious one
is the oath, when we give a judge all this power. Judges have the power to
take away your liberties, take away your property, to
rule away all your legal rights, to decide whether or not
you can be put to death. Things that normal
people can’t do. In exchange for
that power, judges make a promise, a
promise to obey the law, to stay away from the terms
of the law as they find it. That’s an important duty. And now, I know that a
lot of the time the law is ambiguous or vague. A lot of the time,
the law leaves judges a certain amount of discretion. Sometimes, there are
big fights of what the law is, not saying
mechanical process where it’s like umpiring. But, whatever the
bounds of that law are, judges promise to
stay within it, not themselves be the
agents of legal change. And again, that promise has an
important democratic element to it. If judges were the
agents of legal change, we’d probably think
a lot more carefully about all the
powers we give them, and the fact that
the only people who really review their decisions
are in turn, other judges. So that’s the duty,
that’s the framework the judge sits
within, and it makes this question about
originalism’s legal status really important
for them, right? If originalism is the law,
and judges have an obligation to obey the law, then
judges have an obligation to be originalists in a sense. Not to use methods that
are outside those bounds, not disregard the original
meaning of the Constitution, to the extent we
know what it is. And that, I think,
may change a lot, the questions about is
originalism inherently true? Is originalism the best way of
interpreting the Constitution? Maybe originalism is
not inherently true. Maybe there are lots
of other ways to do it, if you go look at
French Constitutional law or Israeli
Constitutional law or even the Illinois Supreme
Court, you’ll see other ways of
interpreting constitutions. But it doesn’t matter
so much if originalism is our way of interpreting
the Constitution. That’s the one we
currently have. Same thing with the
normative questions, right? Maybe there is professors
in this law school that can devise a better
way of interpreting the Constitution if you were
starting out from scratch. Maybe you wouldn’t have
judicial review, at all. Maybe you would
have it, but subject to a totally different
set of principles. But again, if originalism is
ours, it’s the starting point. Then the question is not
just are those ways better? But are those ways
so much better that they’re worth overthrowing
the system we have? Maybe. And, who should be the
one to decide that? In particular, should
a judge, alone, be able to say, well,
I don’t like the law. I’m gonna apply this other
one that seems better. Despite the promise I took. I think the answer’s no. So there are lots
of limits to this. I don’t mean this to sound as
much of a conversation ender as I may have just
made it sound. Obviously, there are
lots of moral questions that go into being a judge. Sometimes, judges
really do decide that something is so
important it’s worth breaking their promise
to uphold the law. It’s happened in abolition
times, the debates to overrule slavery. You can imagine lots of
other places it’s happened. And maybe that’s right. Maybe originalism
is so bad that it doesn’t matter
that it’s the law, and it’s time to like
break off the chains and have a revolution. But that should be the
terms of the debate. Is it really that bad? And similarly, when I
say that originalism is the law, that doesn’t mean
it’s gonna be that way forever. The scary, but
exhilarating, thing about thinking about
the law in these terms, is that it has nothing to do
with the dead hand of the past. It’s not about the
Constitution, itself, or the framers reaching up and
forcing us to follow their law. We can stop anytime we want. We overthrew the
Articles of Confederation to create the Constitution. We overthrew British
law to create the Articles of Confederation. And so on. But, until we do stop,
originalism is the law we have, and it structures the
question about who should be in charge of legal change. And at that, I would
love to get questions. [APPLAUSE] STUDENT: So, when you’re talking
about the first decision about whether or not
something is ambiguous, do you think that
people who are judges, I guess that are more inclined
to other interpretive methods, are just gonna find [INAUDIBLE]
to solve the problem? [LAUGHTER] WILLIAM BAUDE: You know, maybe. So there are two different
ways that might be true, right? So maybe judges are dishonest. Maybe judges who don’t
like the original meaning, or don’t like this
whole originalism thing, but they feel like they’ve
gotta pay a little homage to it, maybe they’ll quickly pretend
to look at originalism and then find it
ambiguous and move on. Maybe I’m naive, I
guess I’m a little more optimistic than that. I do think that often,
they actually are trying. And these arguments
are falsifiable. They have to deal
with the materials. They’re often brief, they’re
often looked at, etc. So I’m not sure about that,
but that’s one possibility. The other is that, of
course, that people who don’t think
about the history, or the text of the
Constitution very much, may just find things
ambiguous because they haven’t thought about it very much. There are a lot of
legal provisions, this is not just true of
a constitutional law, when you first pick up a statute
and you’re like, who knows? The first time I looked at the
Administrative Procedure Act, I was just like, man,
that’s a lot of words. I’m not really sure how they all
interact, what they all mean. But that’s not real ambiguity. The question is whether
it looks ambiguous after you’ve studied it,
after you’ve gotten arguments from the lawyers, after you’ve
looked at it in context. And one thing that’s
become more and more true, is that those
arguments are much more likely to be before judges
than they were before. So, whereas it used to
be easier to say, well, pick your clause, who knows? Now, actually, we know a lot. There’s a lot of scholarship,
there’s a lot of briefing, a lot of people have
done some of the work. So, I do think that that makes
it a little bit less likely. STUDENT: This is just about,
sounded a little bit cyclical that judges are
doing originalism, and therefore
originalism is law, and therefore judges
should do more originalism. Well if judges weren’t doing
originalism, then therefore, originalism is not the law. Isn’t it just a cycle
depending on descriptively, what we define, what
judges are doing as far as if they stop
doing originalism, then it’s no longer
our law, then they shouldn’t do it anymore. WILLIAM BAUDE: So,
yes, there’s a cycle. Although, it’s not a
totally unstructured cycle. This is how common law works. There are common law rules
for all sorts of things, you’ve taken classes on them. And the common law rules
come from practice. And then the idea is that
the parties are obligated to adhere to the
practice, and the courts are supposed to
apply the practice. So there is a sort
of circularity to it. That’s the nature of convention. But it doesn’t necessarily mean
that each individual member of the system is free to
do whatever they want. Like a judge can’t just
say, well, it’s my practice, so I’m gonna practice this way. So think about that as
an analogy, something like the rules of grammar. So to some extent, the rules of
grammar, the rules of English, are a question of
just how do we speak? We don’t speak the
same way we did, the same way our ancestors did,
or in Middle English or even in the founding era. Linguistic practices
can change over time. But no one of us has the
power to change them, right? If I just got up
here and announced that I was gonna
speak in a new way, I was gonna use words in
a totally different sense or like swap all my periods
and commas, just because I thought that was better. That doesn’t become
a rule of grammar, and in fact, you could say
I was not speaking properly. There’s a sense at
which I’m not really applying the rules of grammar. Now, I don’t have an obligation
to apply the rules of grammar in the same way a judge
has the obligation to apply rules of law. But, that’s sort of important. So it does mean that our
practices can change. It does mean that this
is why conversations about Constitutional
meaning are so important, is that over
time, over generations, things really can move. And if they move
enough, and stick, so that some different practice
becomes our law, then indeed, that one is the new one that
has presumptive authority and presumptive meaning. It’s just that it
changes the way some members of the community
are supposed to think about their relationship to it. Yeah. STUDENT: So [INAUDIBLE]
ambiguity with the principles like unreasonable
searches and seizures, there’s a bunch of
levels [INAUDIBLE] ways to interpret
that principle from an originalist perspective. Can you speak just a little more
about the originalist’s tools for deciding which of
those levels [INAUDIBLE]. WILLIAM BAUDE: Yes, so
this is a great question. A recurring problem in
interpreting any legal text, and especially the Constitution,
is the level of generality. So you can understand something
like unreasonable to mean. The lowest level
of generality would be every specific thing
anybody actually thought about it meaning. And the highest level
of generality, I don’t know what that would be. We’d say, unreasonable
is the thing that’s bad, and so this is bad, and
therefore, it’s unreasonable or whatever that would be. And there’s a lot of
possibilities in between. So the best way, I think
there’s a consensus about this among originalists,
to think about that. Is to ask, here’s a
piece of circularity, what was the original
level of generality? Because, again, they can be
written at different levels and so we want to know
which one it was written at. That seems like it’s gonna
be really hard to figure out. How do we know, exactly,
what level of generality it’s written at? But turns out to be
something that people often talk about when
they were framing constitutional provisions
and when they were talking about how they’d apply. Because when you frame
something at a high level generality, like equal
protection, people who oppose it will often say,
well wow, what’s that gonna do? What will its implications
be over here, what will its implications be over here. And then the proponents
often explain well, here’s how we think
about this provision working. So in terms of the
equality provision in the 14th Amendment,
which is just an example I was
reading about recently, there was a lot of
debate about well, how are we gonna
decide what’s equality? We all know it’s supposed to
ban things like the black codes, but how does it apply to
other kinds of caste systems, how will it apply to this,
how will it apply to that? And then the proponents
would say, well, we understand equality
to mean roughly an anti-caste principle,
that if those things are analogous to these
things in certain ways, they’ll also be
unconstitutional. So they were actually describing
a mid level generality. Unreasonable has
a similar, there’s a little bit of a debate, about
whether unreasonable meant something like contrary
to the common law, as a level of generality,
or whether it meant something a little bit higher. Whether it meant just contrary
to the judge’s judgment, using the unreasonable
standard they use in court law and so on. So, that’s an example where
the exact original meaning is a little bit ambiguous, but
again, there are currently people talking about this. And that’s maybe the
self-serving lesson of this whole project,
is that to figure out the original meaning of
a lot of these clauses, you have to do the work. And like dig in to a lot
of the original sources and try to understand
what the debate was. But that’s sort of how it goes. Yes. STUDENT: I want to
know how originalists try to find [INAUDIBLE]. So if the Constitution
is compromised, how can we know
so I don’t share Justice Scalia’s
categorical rejection of legislative history. And I think actually most
originalists probably don’t. Even Justice Scalia, as many
people like to gleefully point out, is willing to
look at the surrounding debates in figuring
out the meaning of a constitutional provision. So, how do you figure it out
when there are multiple views? Well, first of all, again,
often the multiple views can actually come
together about stuff. So the Constitution was
fought over a lot [INAUDIBLE] they ratify it, as there
were a lot of fights between the Federalists
and the Anti federalists. The Anti federalists would
say, we hate this provision because it will do x. And sometimes the Federalists
responded, no, it won’t. So now we have a
disagreement, we have to decide whose
views to prioritize. But a lot of the
time, the Federalists would say, yeah, we’ll do that,
but it’s not gonna be so bad. So when you have those
kinds of disputes, then actually you have
a lot of agreement. So there’s actually,
the first thing is, there’s a lot of agreement. And in the areas where
there’s disagreement, for the most part, sometimes you
can look at those disagreements and tell that some of those
arguments are really bad and some are really good. There’s a legal interpretation
that goes on there. But most of the time, that’s
where these other devices come into play. So, that’s where the example
of the First Congress comes in. The First Congress
debates the meaning of various Constitutional
provisions. They disagree. If they disagreed, if they
didn’t know the answer and they were two
reasonable views, then originalism just can’t
provide you one single answer. Because again, they
were the originalists. And if they had two
choices, then so do we. And that’s when these
other methods come in. And that’s actually
where things like, maybe you have a presumption
of constitutionality, maybe you have a presumption
of following past practice, maybe there are other kinds
of methods that come in. But they are needed
to resolve the cases where people disagree. Yes. STUDENT: I was wondering
if there was a way to reframe your
levels of generality, not in terms of being pulled
in the originalist train, but in certain parts
of the Constitution you can infer originalism’s
the appropriate interpretive method. But for the very general
ones, it actually appears that the reasonable
searches and seizures seem to be casting
off originalism as the interpretive method
in favor of a common law, for example. Is that two sides of the
same coin? [INAUDIBLE]. WILLIAM BAUDE: I think it’s
two sides of the same coin, depends on how we’d
feel about this. So, suppose we take
the casting off view. And then suppose the
judge came along and said, well, apparently we
cast off on originalism and so I can interpret
this law in some other way. And I want to interpret it in
a really, really specific way. I want to interpret it to
just be a list of fact framing and research
practices that I found in an old justice
of the peace manual. If we would think there was
something wrong with that, because the clause itself
is struck to to be general, then you’re on board with me. Then, you’re actually
agreeing with me that originalism sets
the level of generality. STUDENT: So, I think
one of the things that makes the thing about
originalism impractical is that a lot of
people perceive it as a proxy war for
controversial social issues between conservatives
and progressives. And I’m wondering what
implications your view has for the fact that a lot
of times, what people seem to accuse [INAUDIBLE] for
is either for or against affirmative action, or changing
the definition of marriage. Or when personhood
rights attach, et cetera. So I’m curious if the fact
that originalism is our law, does it do anything to the
legitimacy of that proxy war paradigm for originalism? WILLIAM BAUDE:
That’s interesting. So, the way I’m thinking about
it as originalism’s our law, I mean originalism is a method,
it’s not a list of results. So done properly,
you don’t necessarily know whether you’re
gonna get everything out of originalism that you
hope for, that you want. So in that sense, it
suggests that it’s not right, at least for judges,
to think about things from the back end forward. To say, well, I know I
want no gay marriage, no affirmative action, and to
strike down federal labor law. What method gets me that, that
would be the wrong way for them to do it. That’s like it’s you do your
biology homework by first figuring out what the curve
is supposed to look like, and then pretending
to do the experiment. So it produces data. Nobody ever did this, I’m sure. [LAUGHTER] And so in that sense,
it’s illegitimate. This is, and I don’t know if
this is where you’re going, but there’s this other sense,
though, part of what lets originalism be our
law, I think part of what’s let it
go on for so long is the fact that it
makes room for a lot of these kinds of debates. That it structures
the kinds of arguments people otherwise want to have
about constitutional mandate. So I think there’s some
kind of relationship there. But to some extent,
results oriented education is the opposite
of legal reasoning. Yeah. STUDENT: So my question
kind of gets back to Kevin’s a little
bit, I’m wondering why what judges
currently do should be the definition of
our law as opposed to what judges are
required to so. So to give a plain
example, you can imagine the Constitution that says
the method of interpretation will be x. But then, 200 years
later, the dominant method of interpretation is not x. Why is it that not x is now
our law rather than what the Constitution requires. WILLIAM BAUDE: Yeah. So the premise of this
paper, and this talk, is a certain in jurisprudence
it’s called legal positivism, and modern legal positivism
includes this idea that law is necessarily defined
by the conventions we have today, modern social facts. Why that makes sense,
and how we should think about the interpretent
clause, here’s an example. So, there actually
are constitutions that contain clauses that
say how to interpret them. For example, the Constitution
of the Confederate States of America, says that
it is the supreme law of the land of a bunch of
states that are currently part of the union. But we all know
that judges are not supposed to follow the
Confederate Constitution, even though it says so, even
though it contains instructions saying apply me, and
even though it came after the real Constitution. As you might think
it supersedes it. Now why do we all know that? Because the Confederacy
lost the Civil War, the United States is the
real government here, as a matter of our
current practices. So there’s an interaction
Sometimes between the document and the modern
practice, but it’s got to be modern practice that
decides to keep the document or that decides to obey it. So, at least, at
that one stage, it has to be today that
we decide to keep using the old Constitution
rather than something else. And then, the same kind of
thing applies to instructions. So we could, similarly
there’s no reason we couldn’t, say we’re gonna
apply the old document, except for that last clause
where it tells us what we do. We’re gonna ignore that. If we have the choice between
various constitutions, various documents that
purport to govern us, we have the choice about
what to do with them. And that’s why there’s
gotta be some piece of the modern practice in that. STUDENT: So if we
think of originalism as defining the perimeters
of our Constitutional debate, I was wondering
then how do we deal with various Constitutional
law where we’ve probably broken the perimeter. And then, also, how to
deal with [INAUDIBLE] that have gone beyond that. So when you talk
about [INAUDIBLE], you’ve got original
meaning and then you’ve got years of
executive branch practice. But then, how do you deal
with original meaning and then years of
precedent that maybe goes beyond that
original perimeter. WILLIAM BAUDE: Yeah, so what the
court says, and what I think, and what James Madison says,
we’re all in happy agreement. There’s at least for
a lot of practice, that the perimeters do define
the limits of how much you can move around. So the idea behind this
ambiguous text and then look at practice is that
the text has some zone of ambiguity, some perimeter. And practice could be
anywhere in here, you know? But if the practice
gets way outside of even the bounds of the text
then it’s time to reign it in. Then it’s abridged even
in an ambiguous text. And you see that even with
these broadly worded things, like reasonable. There are some things that
just can’t be reasonable under any interpretation, under
any originalist interpretation. Precedent might be the one
exception, so precedents do, sometimes, seem to maybe
go outside the bounds like the perimeters, and
we still stick with them. That’s because precedent
is this very funny thing. It always has been that there’s
a sense in which the judge’s obligation is not always
to look at the text. The judge’s obligation
when deciding a case between two
parties might be to apply some other rules
that have come along. I actually think of precedent
somewhat like waiver. So the sense of if
you bring a case and just there’s a
constitutional issue, but nobody brings
it up, the judge is allowed to just ignore
it, to apply the statute even though the statute is
totally unconstitutional. And it’s not because
the precedent changes the meaning of the
Constitution, or the waiver changes the meaning
of the Constitution. It’s just because part
of the judicial role, sometimes, is to
apply something else. And that seems to be how
precedent works and worked, too. That it’s a rule of common law. That, sometimes,
tells judges not to dig into the meat of
the Constitution, at all. That’s one reason that
I think everybody, every theory of
interpretation, has this uncomfortable
relationship with precedence. Makes a ton of sense, it’s
a good way to run a system, and keeps things from
being too disruptive. But for any theory
of interpretation, it also risks
covering up the truth, covering up the real
method of interpretation. I actually think it’s
part of our precedent is just deeply contested,
but indispensable area. STUDENT: Sort of on
the same lines, why do you think of all the
methods of interpretation, originalism if often
targeted as the one that is most [INAUDIBLE]. [LAUGHTER] WILLIAM BAUDE: So, not
that it was always true, there have been times
when people talk more about certain kinds of
traditional ambition, judges making good policy. And one of the big
complaints is that they’re breaking bounds of precedent. But let’s grant the premise. I think two reasons. So, one, just a lot
more clear, it’s easier to see the conflicts
between originalism and precedent. And the method of interpretation
is based on something like the current social
norms of the community, or doing something reasonable
in light of the facts and circumstances,
it’s just a lot easier to merge yourself with
precedent to avoid having to come into any
sharp conflict with it. But because originalism
makes it clear, like to start with
the text, and to start with a certain set of
meanings about the text, it’s often easier to see
if there’s a conflict. When the method is more clear,
it’s easier to pin it down and easier to attack it. I also think it’s true and
this goes to something earlier, too, that one thing that
makes originalism attractive is that it provides a way
to criticize precedent. So, the court finds itself
in this position, where it’s been doing
something for a while and it’s just become a mess. It’s developed some test
and nobody can figure out what it means, that
it doesn’t really seem to serve the
purpose of the test that it was supposed to serve. And like lost. And originalism seems to
provide a kind of anchor to find some other way out. That happens in like criminal
procedure cases sometimes, the court has been muddled along
for a while about how to think about the confrontation clause. And then finally it
says, well, let’s just go back to first principles. [INAUDIBLE] happens
on more moral terms. So, again, if you’re
a member of the court and you’ve got a lot of
precedent saying things like segregation is
OK, separate but equal, justifying a lot of really
troubling practices, and you want an explanation
for why you, the court, are allowed to get rid of it. Having something you can
point to that’s further back, that’s a prior
political decision, it makes it a lot easier to
explain why the precedents are supposed to give way. So I do think one of the reasons
written constitutionalism and originalism have remained a
recurring part of our practice is because they provide some
way to step outside of precedent for a second. STUDENT: Two things
that are connected. You mentioned how when there’s
an explicit cause [INAUDIBLE] apply it, what about
if certain clauses that are clearly short sighted. The best one I can think of is
the Seventh Amendment, where it’s disputes more than $20. And people generally
disregarded it. And there’s a very practical
reason– we had inflation, and once that opened
Pandora’s Box and you said, OK, this thing is short sighted. We have a pracical
reason for kind of– And you feel like, for instance,
with the recess appointments and say, ah, the system’s
kind of broken down. We have this practical
reason to step in. We’ve been doing it the
same way for [? 99 ?] years. So by allowing it in
that one instance, there’s a kind of [INAUDIBLE]
slippery slope for that kind of analysis [INAUDIBLE]. WILLIAM BAUDE: So it
would, if we did it. So, yes, what do you do
with stupid, but clear, Constitutional provisions,
or misguided, but clear ones? Well an interesting
thing is actually, we often do obey them
even when they’re stupid. So if you go into federal court
and you want a jury trial, you have a right to one. You can demand one even though,
if you ask any patent litigator and they would agree,
that jury trials are just the bane of any kind of sound
administration of the patent laws. But there they are. [LAUGHTER] Now, yet, so some of
the places at which there’s a little bit
more ambiguity, then we sometimes limit the
scope of those amendments. So, there’s some ambiguity
about which amendments are incorporated against the
States and for that reason, maybe the clause hasn’t
been incorporated. There are some
ambiguity about what is a legal question versus
what is a factual question. It’s hellacious
to go to the jury. But, actually, even those
amendments get followed. Or, I don’t know, the
electoral college. Kind of a weird way to
run a presidential system, compared to something
like the popular vote or many other things. But every four years, there
we go, we do it again. And even though lots of
people think it’s stupid, and obviously lots of
people have a lot invested at saying they would
do it some other way, I get that nobody ever tries to
crown the other side president, just because the electoral
college is really, really stupid. And it’s time to ignore it. So I guess it’s actually right
if we started ignoring even those provisions, it would be
a good example of throwing off a certain form of originalism. And the fact that we don’t,
even when they’re stupid, is part of what’s so telling. STUDENT: Maybe, could you
elucidate a little bit on how your theory
of originalism helps to decide hard cases
in capital punishment? WILLIAM BAUDE:
Capital punishment. Sure, I mean I will say
hard cases are hard. So, I happened to have
read a lot of the research on the Eighth
Amendment, so I think I can do that as an example. So capital punishment,
presumably, the main question is whether it’s
cruel and unusual. There is a certain simple-minded
originalist argument that goes, well look, if you
read the Fifth Amendment, it mentions death. It mentions people
being deprived of life, and it mentions being put
twice in jeopardy of life. And that shows that they
anticipated capital punishment, they knew about it, they
must have been OK with it, so it can’t possibly
be unconstitutional. That argument’s wrong. The fact that the
framers thought there would be
capital punishment, even wanted there to
be capital punishment, doesn’t alone mean that it’s
never cruel and unusual. Because we have ti know,
what kind of tests, what kind of changing
circumstances, they baked into
cruel and unusual. Probably, the best
answer seems to be that at least the word
unusual is supposed to refer to some kind of common usage. And so the cruel and unusual
punishments clause says, any new punishment,
any punishment we haven’t been
doing for a while, or have ever done before, has
to be less cruel than what we’ve been doing instead. It sort of operates
as a one way ratchet. So, in places where they
don’t use the death penalty and haven’t used
it for a long time, the death penalty might
be unconstitutional. I mean, depending on whether
death is worse than prison. Most people think death is worse
than prison, although actually, not everybody agrees. So there’d be a little
bit of a question there. But probably, the
answer would be, that jurisdictions that
have stopped using the death penalty for a certain
period of time, probably a couple
generations, the death penalty becomes unconstitutional
over time. But jurisdictions that
use it all the time, that even though it’s cruel,
even though it may well be cruel, it’s not unusual. And so, probably remains. That’d be what I
say is the right way to approach that analysis. Now, obviously, there are
lots of steps in there that individual judges could
disagree with in good faith. Some people think
that unusual might have a more specific meaning,
or more general meaning. Some people might
think [INAUDIBLE]. But I think that’s the right
way to think through, say, that hard case. All right. Any others? Thank you very much. [APPLAUSE]

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