Grounding Originalism: A Panel Discussion Moving from Legal Theory to Legal Practice

Written by Andrew Borrasso

We The people text

 

 

 

 

 

Photo by Anthony Garand on Unsplash

Is originalism correct? What might make it so? Grounding Originalism, a forthcoming Essay by Professors William Baude and Stephen E. Sachs, tackles these questions by moving from legal theory to legal empirics in an effort to provide a coherent story of our law.

On Friday afternoon, November 5, 2018, Professors Baude and Sachs were joined by Professor Michael Ramsey in a panel discussion about Baude and Sachs’s piece, Grounding Originalism. This panel was part of Northwestern University Law Review Symposium, Originalism 3.0, which focused on originalism’s latest scholarly developments.

As a group, the scholars at this year’s symposium explored originalism by offering new taxonomies, theories, and critiques. This panel focused on translating what is typically categorized as a legal or interpretive theory into empirically observable hypotheses. As Professor Baude explained: “One of the main goals of our paper was to redirect attention to the empirical question: what actually is the official story of our law? If it is not originalism, what is it?”

Professor Sachs, moderating, led off the panel discussion with a summary of the upcoming Essay. He explained that the Essay proceeds in three steps. First, Baude and Sachs detail why choosing a positive legal theory is justified. During the discussion, they suggested that their particular choice of H.L.A. Hart’s positivism functions as an illustration—a similar approach could be adopted for different positivist accounts without much difficulty.

Second, the authors situate a broad swath of originalist theories—generally those that embrace legal reasoning tracing back to the founding either by reference to the Constitution, to historical practice dating to the period, or to lawfully adopted changes enacted since then—within Hart’s positivism. Here, the authors argue that law is largely inferential in nature, which helps distinguish between official legal acts (for example, a judgment in a particular case) and official legal stories (i.e., official reasoning offered as a justification). The authors provide examples where official actors within the legal system may depart from the official, inferential, story of the law in order to facilitate all-too-human expediencies. Or, the authors suggest, given the deeply entangled nature of our law, official actors may remain ignorant in practice to a legal inference as a group, which explains how global departures from the official story may go unaddressed for periods of time. Ultimately, the official story consists of those rules by which the official actors within the legal system feel constrained.

Finally, the authors proceed to the third step of their project: their empirical claims. Several observations—including that judges tend to reject legal discontinuities from the founding and that there are not clear repudiations of originalism in Supreme Court case law—lead the authors to argue that what makes originalism our law is that our legal practice displays a deep commitment to the original law.

Professor Ramsay followed Professor Sachs and provided commentary. While appreciating the piece, his main inquiry focused on whether originalism encapsulated all of the official story of our law. Though he agreed that a large part of the law was empirically originalist, he suggested that there may be other portions of the official story: for example, when the Supreme Court uses nonoriginalist arguments to support legal decisions to members of the legal community who are not originalists.

Professor Baude concluded the panel’s introductory discussion by noting his appreciation for Professor Ramsay’s suggestions and describing additional avenues the paper may explore in subsequent drafts.

The panel closed with a lively discussion among the scholars in attendance. The conversation began with a colloquy focusing on the implications of choosing Hart’s positivism as a jurisprudential frame. Eventually directing their attention to the piece’s empirical focus, others explored potential difficulties in teasing apart the official story of the law from the official acts of its participants.

Professors Baude and Sachs’ full essay will be published in April 2019 in the Northwestern University Law Review.

Andrew Borrasso is a student at Northwestern Pritzker School of Law and Deputy Editor-in-Chief of the Northwestern University Law Review for the 2019–2020 Editorial Board.