Will Baude's recent article provides new reasons to defend sovereign immunity, and he does so on originalist grounds.
On Friday, October 4, Northwestern Law School hosted a conference, “Originalism and History: An Interdisciplinary Discussion,” organized by Northwestern law professors John O. McGinnis (well known to Law & Liberty readers) and Jim Pfander. The readings and discussion at the conference highlighted the differences between historians and legal scholars. One line of debate involved the historians criticizing legal originalists for lowballing the difficulty of discerning the historical meaning of legal texts—and specifically, the U.S. Constitution—from the distance of over 200 years. For their part, the originalist legal scholars complained that historians set the threshold for historical knowledge required to understand constitutional texts artificially high. To encourage open discussion, the conference’s ground rules sensibly forbade quotation with attribution, so in what follows I only sketch a couple of general reflections in response to the day’s wide-ranging discussion.
We’re All Originalists Now
Well, not quite. But there’s an openness to identifying oneself as an originalist, even among liberal academics, that did not exist even a few years ago. Part of this openness follows from the shift in originalism from the initial, 1980s form of Edwin Meese-style “original intentions originalism”—which focused on what legal drafters subjectively intended to write—to some form of Scalia-like textualism, or “original meaning originalism.” This focuses on the public meaning of a constitutional or legal text when it was adopted. After a lag in which academic critics of originalism continued to pummel the straw man of original intentions originalism (Originalism 1.0), specialist critics have largely started to catch up and focus on original public meaning originalism (Originalism 2.0).
As this shift sinks into academia, there appears to be a greater openness to the label “originalist” even among (some) liberal legal scholars. This is a telling point that should not be passed over too quickly. As I wrote several years ago in my Law & Liberty review of historian Jack Balkin’s book, Living Originalism, before considering the substantive content of Balkin’s argument:
we should pause and note this signal turn in the thought of a leading Progressive legal scholar. With a nod to on-going contests among rival political groups who argue over what different texts in the U.S. Constitution mean—a process that Balkin (following others) terms “constitutional construction”—Balkin accepts the root commitment of textualism as the appropriate methodology with which to read the Constitution. Constitutional interpretation must be tethered to the text.
The willingness of an increasing number of Progressive legal scholars and legal historians to identify themselves methodologically as originalists is particularly striking. Even more noteworthy are their efforts even as they argue that today’s originalists misapply the method and so come to incorrect conclusions on constitutional interpretation.
But what gives that accounts for this increasing openness? Along with the shift from Originalism 1.0 to Originalism 2.0 is a subtler shift in the justification for originalism. This shift does not reject the original justification for originalism, but rather sets it in a broader and more compelling context.
The original justification for originalism came in response to the excesses in constitutional interpretation in the 1940s through the 1970s. During this period, paeans to the “living breathing Constitution” pretty much meant that judges, and Supreme Court justices in particular, felt free, and should feel free, to impute novel meaning to all but the most determinate constitutional texts.
As a result, the original case for originalism rested in “restricting” judges and justices to original intentions or original meanings.
The affirmation that legal texts had meanings “fixed” at the time of their adoption or enactment led to an oft-repeated straw man argument, albeit one invited by the proponents of originalism. The claim that the meaning of a legal text was fixed at the time of its adoption was often construed to mean that each legal text has a single, determinate meaning at the time it was adopted. This straw man argument continues to be repeated against Originalism 2.0.
There is an obvious difference, however, between rejecting the claim that the meaning of a legal text can evolve over time and eventually mean something it could not have reasonably meant at the time it was adopted, and claiming that all reasonable readers of the text would identify a single, fixed meaning to that text if they limited their reading of the text to its original public meaning.
As with any text—from Shakespeare to a letter from Aunt Emily to a cooking recipe—there can be words and phrases the meaning of which reasonable people can disagree upon. Recognizing the possibility that a given text allows more than one reasonable reading does not entail throwing up our hands and imputing any meaning that a “living breathing” construction of the text would allow. Even when we disagree, we are all still involved in trying to read what was actually written as opposed to imputing meanings that could not possibly have been communicated by the text at the time it was written.
In this sense originalism still restricts judges to what was actually written, even as there may be disagreement over what that is. But the normative justification for originalism is broader, and more compelling, than “restricting” judges to a smaller set of possible meanings. The justification for originalism is simply one of reading a text honestly.
In seeking to understand any text, whether a legal text or another type of text, we know that we are limited to what the text could have meant at the time it was written. That doesn’t mean that the text cannot be ambiguous, or poorly written, or the like. But it does mean that the meaning of the text at the time it was written could not have communicated a meaning that the words could not support at the time. Applications of a legal text necessarily evolve with new circumstances. The meaning of the text, however, cannot change, even if that meaning is contested at the time it was adopted.
The reason originalism is receiving increasingly sympathetic attention from a broader set of legal scholars today is because of its compelling moral justification. Originalism is about reading legal texts honestly, which is to say reading legal texts as we try to read just about every other text in everyday life.
The Difficulty of Historical Meaning Does Not Constitute a Problem for Originalist Theory
A second focus of discussion at the meeting concerned the difficulty of understanding the meaning of important legal texts (or any text) over 200 years after it had been written. The extreme version of the argument goes something like this: The world of the 1787 was so different from the world of 2019 that it takes a huge investment of time and energy to read honestly many parts of the Constitution. One need not be an academic historian in order to do so, but one would need to invest the same amount of time and energy as an academic historian in order to do so. Law professors and lawyers in general have not invested this amount of time and energy, therefore they are (generally) unqualified to provide originalist readings of constitutional texts. They should instead defer to what professional historians (and others with like training) conclude about those texts.
The originalists contested the claim, suggesting academic historians were setting the threshold for honestly reading legal texts too high.
It’s a important debate, but I don’t want to discuss the substance of the dispute here. There was a general assumption in the literature and discussion of the historians that merits attention. It is an understandable assumption, but an assumption that needs correction nonetheless.
Historians criticizing originalism generally style the opaqueness of historical meaning as presenting a theoretical problem for originalism. This is understandable given the attention devoted to interpreting the U.S. Constitution. But originalism as a theory is not limited to reading only the U.S. Constitution. It’s about how to read any constitution—national as well as state constitutions—indeed, it is about how to read legal texts in general, statutes and regulations as well as constitutions.
But not all legal texts are historical artifacts in the way the U.S. Constitution is a historical artifact. The state of Georgia, for example, ratified its current constitution in 1982. The historical opaqueness of the text of Georgia’s state constitution presents a minimal problem in reading the Georgia constitution in an originalist fashion. To be sure, historical opaqueness might make it more difficult to provide an originalist reading of an old constitution, but that is not a problem that goes to the compelling theoretical justification for originalism. One could be committed to originalism as a theoretical matter even while conceding that a high degree of historical learning is necessary to read and understand certain provisions accurately.
There are utilitarian motivations for originalism as well. First, it promotes better legislative drafting and deliberation, at least at the margin. If legislators or constitutional designers believe that judges will treat any text as an empty vessel, to fill with whatever meaning they wish to read into that text, then there’s less reason to be careful when drafting that text. Indeed, perhaps it would be better to avoid drafting anything at all so as not to open the door to unknowable judicial mischief in the future. So, too, originalism better aligns with popular “civics class” notions of constitutionalism. Sophisticates make fun of this naïve model—as my constitutional law professor did in law school. But that a constitutional text means what the public meaning of the text meant at the time it was drafted aligns with the way people generally read any text. It is certainly true that some texts have technical meanings, but even those technical meanings are open to public understanding with the requisite training, as opposed to occult meanings read into the text by subsequent judicial interpretation.
The conference provided a fascinating glimpse into the dispute over originalism today. The normative justification for originalism—honest reading—is compelling. It is causing cracks in the once solid wall of opposition to originalism in academia. Originalism does not necessarily offer unique, determinate, and easily identifiable meaning to legal texts. But it is progress if today’s debates about meaning center on the original meaning of constitutional texts rather than on new and novel meanings unknown and unimagined at the time a legal text was drafted.