Originalism, false dichotomies, and determinateness

Will accuses me of setting up a false dichotomy by focusing on two extreme versions of originalism–originalism that requires judges to ignore precedent and originalism that licenses living constitutionalism. His response:

Originalism sometimes produces living constitutionalism, depending on how abstract a provision is, how clearly its meaning is known, and how much that meaning was intended to evolve. Originalism sometimes permits precedent, depending on how clearly a precedent can be shown to conflict with original meaning, certain forms of reliance, etc. When originalism permits precedent, the original meaning sometimes “plays a role” by helping judges figure out whether the precedent should be extended or distinguished in future cases. In each of these cases, the originalist answer can only be figured out by actually doing the work.

Well, okay, but this pretty much eliminates one of the major defenses of originalism–advanced forcefully by Scalia among others–which is that it dictates determinate case outcomes. This is crucial for Scalia because he fears that otherwise judges will allow their ideological preferences to influence interpretive outcomes.

It is ironic that in the next paragraph Will argues precisely that what is distinctive about originalism is that the interpreter doesn’t always get what he wants. But if the decision to overturn precedent on originalist groups relies on judgment–a weighting of competing factors that are often elusive and difficult to articulate–then the kind of cognitive dissonance reduction that Scalia worries about will creep back in. We saw this with the Printz case. Scalia might have been right to dismiss originalist arguments because of the strength of precedent, but he certainly did not provide much of a defense. I suspect that this was because he did not want to acknowledge that this is what he was doing. (N.B.: Scalia’s statement in Originalism: The Lesser Evil that he would never hold that flogging is a constitutional punishment, regardless of the original understanding of the eighth amendment, is at variance with this idea that the interpreter doesn’t always get what he wants, isn’t it? [It was subsequently pointed out to me that Scalia revoked his earlier statement about flogging. Maybe that is tied to his statement in the same interview that he doesn’t care what his intellectual legacy is.])

Finally, Will says that his theory of originalism offers “safety valves,” including amendment and illegality. I hope to learn more about why one should think that the Article V procedure offers an acceptable safety valve. What are the criteria for determining whether a safety value is acceptable or not? His endorsement of “illegality”–presumably the idea that the justices or other political actors should simply disregard the original understanding when it produces unacceptable outcomes–suggests that Will doesn’t think that Article V is in fact adequate on its own. The illegality safety value raises anew the question of determinacy: how, except by falling back on discretionary and contestable judgments about moral and political values, can one justify ignoring the original understanding? How can originalism ever rule anything out if illegality remains a morally valid option for interpreters and other agents?

Originalism means not always getting what you want

That is, for Will Baude, one of the major virtues of originalism, which distinguishes it from other interpretive theories. And he says that this is the fundamental disagreement between him and me:

Originalism suggests that somebody other than the interpreter gets to make important policy decisions, even if that other somebody might sometimes choose to delegate back to the interpreter in the end. Hence, there is no guarantee the interpreter will like the answers, though it is also a mistake to assume that the interpreter will hate them.

He has made this argument before, and I’m afraid I disagree. All alternative interpretive methodologies I can think of provide no guarantee that the interpreter will like the answers. This was one of the points that Randy Barnett made in his debate with Sunstein, who was trying to debunk originalism by showing that it would permit racist and sexist laws. Barnett responded that Sunstein’s preferred approach, minimalism, also does not guarantee (for example) that the Supreme Court will order the government to provide welfare to poor people, an outcome that Sunstein presumably would approve of (according to Barnett). Another appealing interpretive methodology–Thayerianism–obviously would give the interpreter no recourse if Congress decided to abolish the national bureaucracy.

Originalism is itself a choice. Proponents of originalism must make arguments on behalf. And this creates a paradoxical problem for its defenders like Will, who says “if you are intellectually honest, signing on to originalism is signing on to a theory of authority where you can’t be guaranteed in advance that you’ll like what you find.” He’s right that originalism won’t get off the ground if it just advances the political preferences of a small group of people. As I said, the same is true for other methods. The question is what does it get us beyond that? And to answer that question, he must show that it is superior to other methods, presumably by advancing institutional values that everyone or nearly everyone shares. In this respect, originalism is no different from other methods.

Imbalance of power

ratio fed employees

This graph shows the ratio of federal (civilian, non-post office) employees to legislative employees (Congress and its staff) from 1815 (executive = 938, legislative = 243,) to 2010 (executive = 1,360,000, legislative = 31,000), or from a ratio of 3.9 to 43.9.

The rise in executive power is inexorable; you’ll see the same pattern in the states and in foreign countries. It reflects deep forces that are unresponsive to ideological swings. It shows that with the passage of time the executive’s influence on policy outcomes increasingly outstrips that of Congress.

What is the committed originalist to make of this pattern? I can see two responses. The formalist will say that it doesn’t bother him as long as the rules were obeyed. If they weren’t, then the entire edifice of the modern legal-bureaucratic state must be dismantled, whatever the cost. (I realize now that there are moderate originalists who don’t take such a position, but I am at a loss to understand the practical implications of their originalism.)

A non-formalist originalist might argue that, regardless of whether the rules were obeyed, the legal-bureaucratic state must be dismantled if it is inconsistent with whatever substantive goals the founders sought to achieve for government structure. I find it impossible to believe that anyone at the founding would have believed that our system is consistent with their goals. (They did not express admiration for the centralized national bureaucracies of the time like France’s, or historical bureaucracies in Imperial Rome and Byzantium, as far as I know.)

Most critics of originalism focus on the problems that this methodology poses for current equality-related values, e.g., race relations. The problems that originalism poses for government structure are even greater.

Let me anticipate Will’s response, which I expect will be that originalism doesn’t necessarily preclude modern government structure. That is something to be determined. But my view is that any methodology that could even possibly entail that we must return to a government structure appropriate for a small agrarian society, a structure that exists nowhere in the world today, is off the table.

Here is a response from Michael Ramsey to my earlier post on precedent.

Reply to Will on Noel Canning

Will misses the point of my graph, though that’s my fault, as I didn’t supply much of an explanation. My point was not that it’s a shame that 3 NLRB members don’t get appointed, or an NLRB order is vacated. Nor is it my view that the government should be as large as possible. My point was instead that the rules that the founders developed to address government structure reflect a different world, and hence are unlikely to be reasonable for our purposes.

The founders tried to establish what they called a “republican form of government,” in which most policy would be made through public deliberation and debate. Whatever the merits of such a position in the 18th century, it is completely wrong today. We live under what might be described as a bureaucratic-legal system. Nearly all policy is determined by the bureaucracy subject to very general control by elected officials and judges. This is inevitable in any large country. I can’t think of a single historical or modern example of a large country (aside from failed states) that does not use a vast bureaucracy to determine and implement policy. The only real exception is the U.S. federal government in its first few decades, and that is because in the early years local interests were not yet ready to yield power to the center, and a largely agrarian with mostly local markets did not need national regulation. It may be reasonable to believe that the U.S. government is too big today. But does anyone think the right size is 938 employees (actually the 1816 figure, the earliest I could find)?

Will says he’s “inclined to say that [originalism] provides a benefit by giving us a baseline set of institutions from which we can depart if we marshal sufficient consensus.” But we have marshaled such a consensus; it is reflected in 200 years of institutional development that has been ratified over and over by different configurations of political interests.

It is not my view, contrary to Will’s suggestion, that I know best how the government should be structured, and my views should be implemented by the Supreme Court. My view is that as between the originalist baseline (which Will is confident is correct) and the status-quo baseline, the status-quo baseline is a better one. My position does not require any special “confidence.” Will is just smuggling in a bias for originalism by arguing otherwise.

Originalism and precedent: Baude v. Sunstein

Will criticizes Cass Sunstein for attacking an extreme form of originalism that Will says that no sophisticated originalists believe. Sunstein says that originalism threatens to destabilize the U.S. constitutional system by throwing into doubt apparently fundamental principles that are inconsistent with the original understanding (in such areas as equal protection, freedom of speech, and takings, among others). Or if it doesn’t–if one is a “faint-hearted” originalist who accepts precedent–then one isn’t an originalist at all. Will responds that sophisticated originalists do give weight to precedent, and thus Sunstein is attacking a straw man. Similarly, in response to an earlier post of mine, he said that an originalist might believe that the original understanding requires courts to defer to precedent; thus, originalism is not necessarily inconsistent with stability.

I’m skeptical of Will’s defense. For one thing, there is a confusion here between originalism-as-justification and originalism-as-interpretive-methodology. The debate–to the extent it has any practical relevance–is over the latter. If you persuade yourself that the original understanding justifies the methodology of the “living constitution,” and then you want to decide cases like Justice Brennan, Sunstein is not terribly worried about you. It’s like a theologian who argues against science by claiming that God chooses to make everything act according to the laws of physics and otherwise never intervenes. He preserves God but otherwise gives away the game.

Similarly, Sunstein will have little problem with originalists who give weight to precedent for other reasons, as long as they give enough weight to precedent that the original understanding itself rarely or never plays a role in actual judicial decision-making. Will is never very clear who the originalists are who take such an approach, but I, at least, haven’t found very many. Will himself appears to believe that the Supreme Court should revisit settled doctrine if new evidence of the original understanding emerges. If so, and he is certainly a sophisticated originalist, then Sunstein is not criticizing a straw man.

Will has a “big tent” theory of originalism that allows originalism to survive attacks like Sunstein’s because within that tent there is always a moderate version that critics like Sunstein have no problem with. (For another example, see here.) Since they remain standing, “originalism” survives. Will himself commits the fallacy of mood affiliation by suggesting that the extreme versions are unobjectionable because they occupy the same tent as the moderate versions that lack the features that Sunstein objects to.

Originalism class 5: Noel Canning

fed employees 2Noel Canning is the cleanest test for originalism you could ask for. The class (or most of it) seemed to agree that the most natural interpretation of the recess appointments clause, in founding-era context, is that the president can fill an office only if the vacancy opens up during a recess, and probably an intersession recess. I would qualify this point in the following way. In the years after ratification, government officials who sought to make sense of this clause thought of it in this way; at the time of ratification, there is little evidence that anyone gave it much thought. In any event, it seems likely that the Supreme Court will rule for Noel Canning.

If so, that’s a shame. For my reasons, see the graph above.

Source: Census.

The case against “socialized law”

In The New Republic, Noam Scheiber advocates price regulation and subsidization of legal services, so as to counter the advantages that the rich enjoy in our legal system. I criticize his argument here. My argument begins:

In days of old, litigants would hire champions to assert their claims in trial by battle. The rich could afford more skilled warriors, and so were more likely to win their lawsuits (and less likely to lose their heads). One could imagine proto-liberals at the time proposing, quite sensibly, that everyone receive a champion of equal quality. Whether this would have improved justice is another matter.

Thomas McGarity’s Freedom to Harm

Mine Safety and Health at a GlanceVia a helpful review by Daniel Farber, I found out about this book, which is a much-needed one. I have searched in vain for some time for an overall assessment of deregulation in the United States. Unfortunately, if the remit of McGarity’s beloved Consumer Protection Safety Commission extended to books, this one would have to be recalled.

McGarity argues that the deregulation movement arose from a conspiracy between business interests and right-wing intellectuals, who hoodwinked Congress and the public. In fact, deregulation was largely a bipartisan movement that started in the Carter administration, and reflected an emerging consensus that many (but not all) regulations did more harm than good–in particular, rate regulation.  McGarity barely discusses or discusses not at all airline, trucking, and railroad deregulation of the 1970s, which generally has received high marks, or the resistance of business interests to some forms of deregulation–all of this contrary to this thesis. He is certainly right that a lot of deregulation went too far–notably financial deregulation–but because he refuses to provide a realistic baseline for determining whether deregulation benefits or harms the public, he provides no reasonable method for distinguishing between good deregulation and bad deregulation or, for that matter, good regulation and bad regulation.

Instead, he resorts to  anecdotes. One of the weakest chapters discusses transportation safety, and he includes some distressing anecdotes of terrible accidents that he blames on deregulation. But transportation safety has greatly improved over the period of deregulation. Numerous studies show that railroads, airlines, passenger vehicles, and other modes of transportation are vastly safer today than they were in the 1970s. McGarity acknowledges some of these statistics at the beginning of the chapter, but by the end he has forgotten them, and instead pronounces deregulation a disaster for safety. Nor does he acknowledge the economic benefits from transportation deregulation, which have been extensively documented by economists.

Similar points can be made about other chapters, for example, the chapter on workplace safety, which provides a tendentious picture of mine safety being utterly neglected, when in fact safety has steadily improved (as shown by the graph above). The fatality rate dropped from 0.200 (1970) to 0.059 (in 1980) to 0.016 (in 2010) fatalities per 100,000 workers in coal mines. Certainly, stricter regulation would have caused the fatality rate to drop even further, but would it have been worth the cost? No answer is provided.

Another lurking question is the extent to which deregulation actually took place. As Farber notes, the evidence is often equivocal. The sheer number of rules has greatly increased; budgets are a more complex story, but private rights of action have also become more important. When rate regulation in the railroad and telecommunications sectors were eliminated, it was also thought necessary to introduce regulations to ensure free entry, leading to quite complex regulatory regimes. Airline safety was never deregulated; the fear was that price competition would lead to less safe airlines. What exactly deregulation is, and whether it has had good or bad effects, are important questions. We’ll need to wait for another book for the answers.

Response to Will’s response to my class 4 comments

Will’s post is here.

1. Will has on several occasions argued that when a critic points out a particular defect X or Y in originalism, the critic must also show that some other interpretive methodology does not suffer from that defect, or is not otherwise inferior to originalism. It takes a theory to beat (or outrun) a theory.

This is not exactly right, though it contains an element of truth. Some theories are so bad that one can condemn them without comparing them to others. The theory that justices should consult the Zodiac in order to resolve disputes is one. At some point, we will need to examine alternative theories and see how they measure up to originalism. But in the meantime, it is pragmatically implausible to insist that one must constantly juggle all the theories at once (how many?) in order to be justified in pointing out a problem with one of them.

2. Will says “I see our government strictly following the founding-era document a huge amount of the time.” The modern system of governance in this country is vastly different from what existed in the eighteenth and nineteenth centuries. If it is consistent with the text, that can only be because the text is so vague and full of holes, undefined terms, and so on. Any style of originalism that can accommodate the current system of government has hardly any constraining force at all.

3. Will says “I think many (though not all) invocations of originalism are sincere.” Frank Cross’ book is the most rigorous effort to test this hypothesis and he finds no evidence that originalism constrains justices. It may be, as Cross suggests, that this reflects motivated reasoning rather than insincerity, but the effect is the same. This is also a problem for Will’s claim in a more recent post that originalism can constrain judges.

 

 

Ancient Roman religious practices: a correction

Marcus Aurelius sacrificingI received an email from a former student with the promising subject line “entrails.” It reads:

You mentioned in your post on Originalism class 4 that Roman priests would examine bird entrails in preparation for great political events. Actually, a Roman haruspex would examine the entrails (usually the liver) of any particular sacrificial animal, which could have been poultry if the offeror was poor, but was most commonly sheep. An augur’s method of divination, by contrast, involved watching the skies and interpreting the birds’ flight paths– most famously, when Romulus and Remus determined that Rome was to be founded on the Palatine hill rather than the Aventine when Romulus saw twelve auspicious birds in the sky, while Remus saw only six.

In one of his lesser known letters, Cicero told of an augur who complained that haruspices lacked empathy. A haruspex who overheard the comment angrily dismissed augury as “legalistic argle-bargle.”

How much has executive power increased?

federal register pagesAs Andrew Rudalevige notes, in response to fellow Monkey Cage inmate, Erik Voeten, presidents do not exercise power only through executive orders. Moreover, many executive orders are trivial while others are important, so one can learn only so much from their absolute numbers. For that reason, it is important to look at other measures of executive power. The graph above shows the number of pages in the Federal Register each year to provide a rough sense of regulatory activity of the executive branch. For many reasons, this measure is extremely crude, but it reinforces two important points: that executive power has increased dramatically since World War II, and that in recent years any particular president such as Obama or Bush does not act much differently from his predecessors.

Originalism class 4: Brown

Will says that he’s not sure whether Brown is right or wrong as a matter of original meaning, and even if it is wrong, this kind of problem–a popular case being inconsistent with an interpretive theory–is not unique to originalism. Moreover, it is a mistake to judge an interpretive theory by its moral goodness, he says.

The last point is in tension with the first, and the first point is in tension with one of originalism’s supposed advantages–that it produces determinate results. But time and again, the original meaning turns out to be obscure, and so either courts must be willing to continually reevaluate precedents as new historical research is produced (which is unacceptable from the standpoint of judicial economy and legal stability) or the original meaning loses its ability to exert influence on legal outcomes as precedent accumulates. Will says in response to Klarman’s criticisms of McConnell that it’s really hard to determine what the original meaning of the 14th Amendment is, and new evidence and analysis constantly appear more than a century later, so maybe eventually we’ll agree that Brown is consistent with the original understanding after all. But this is a defect of originalism, not a virtue.

An interpretive method that can’t account for Brown, or treats it as an epicycle, is  useless. It provides no guidance to people as they decide what laws to pass and how to plan their lives, or any guidance to judges who seek conscientiously to extend the constitutional tradition.

And this is why originalism must be based on moral considerations, as all constitutional theories must be–at least, if the goal is to persuade justices to overturn precedents and citizens and politicians to support those goals. A successful constitutional theory must appeal to institutional values that people (or enough people) share; otherwise, it is a purely theoretical construct with no practical relevance. (Originalism has done as well as it has because of the support it receives from conservatives and libertarians, who find the quasi-libertarian political culture of the founding era appealing.)

I’m not sure how otherwise one derives a justification for an interpretive methodology. From some readings and some of Will’s comments, I see two possibilities. First, originalism is right just because Americans are originalists. I don’t think that’s true. Americans support Brown and will continue to do so regardless of what historians eventually show.

Second, originalism is right because we are bound by a written constitution; it’s simply the consequence of a larger commitment to constitutionalism. But the constitution in practice is just what the various branches of government agree are the rules of the game at any given time. In their hands, the founding-era document is little more than a rhetorical flourish, used strategically. That is our political culture, one that happens to require ritual obeisance to the founders. Thus would the Roman priests examine the entrails of birds in preparation for a great political event. How long would one of those priests have lasted if he really thought he could discover in those entrails the will of the gods?

 

A strange debate about executive power

File:Jupiter Smyrna Louvre Ma13.jpgAs I note in a comment on NYT’s Room for Debate, the “executive order” imbroglio coming out of the State of the Union speech is strange. The White House told newspapers before the speech that the president planned to sling about executive orders like Zeus with his thunderbolts, and they duly reported it on their front pages. Republicans duly exploded with outrage. The speech itself has a single mention of executive orders (“I will issue an executive order requiring federal contractors to pay their federally-funded employees a fair wage of at least $10.10 an hour”). The president continues in this vein, saying that he is going to do a bunch of other extremely minor things using his existing statutory authority, though it would be better if Congress would chip in with some legislation. The resulting controversy about presidential power is entirely manufactured–by both sides. Maybe the president’s strategy was to look fierce to his supporters while not actually doing anything that might get him in trouble with Congress.

Charles Barzun replies on inside/outside

Here is Charles Barzun, who gets the final word. The original paper is here; Charles’ response; my reply; Adrian’s reply.

In my response to their thought-provoking paper, I argued that the supposed fallacy that Eric and Adrian identify depends on empirical claims about judicial behavior in a way that they denied.  My point was that although the targets of their critique may make different assumptions about what motivates judges and what motivates political actors in the other branches, those assumptions are not necessarily “inconsistent” if the different treatment is justified by the different institutional norms and constraints that operate on judges, as compared to other political actors (which I consider to be at least in part an empirical question).  Neither this point – nor any other one I made – depends on controversial claims about the nature of truth or logical consistency, postmodern or otherwise.

In their brief rejoinders, Eric and Adrian continue to insist that their argument does not depend on any empirical claims about what motivates judges.  But in so arguing, each of them contradicts himself and concedes my original point in the process.

Adrian first says of the kind of argument they were examining that “it is caught in a dilemma — it can survive filter (1) only by taking a form that causes it to be weeded out by filter (2).”  I take Adrian to mean here that the argument can avoid the charge of inconsistency (filter (1)) but only at the cost of making implausible empirical assumptions about how judges act (filter (2)).  But then he goes on to say that by the time we are considering the empirical question (filter (2)), “the fallacy has already dropped out by that point; it is not affected at all by whatever happens in the debate at the second stage.”  But how can it be that the fallacy is “not affected” by what happens at the second stage if, as he has just said, it can “survive filter (1)” by making empirical claims that filter (2) then “weeds out”?

Eric makes the same error in even more efficient fashion.  He says, “we sometimes argue that they escape the problem only by making implausible arguments.  But the inside-outside problem does not depend on our skepticism about these specific arguments being correct.”  Eric’s second sentence contradicts his first.  He acknowledges that the targets of their critique can “escape the problem” (of inconsistency) by making what he considers to be implausible empirical arguments.  But then he insists that their charge of inconsistency does not depend on those empirical arguments about judicial behavior being implausible.  But how can that be the case if, as he has just said, the scholars can avoid inconsistency if those empirical arguments are correct?

I don’t think I’m the postmodernist in this debate.

Adrian Vermeule responds to Charles Barzun on the inside/outside fallacy

I generally follow Johnson’s advice never to respond to critics, but this is the season for breaking resolutions. So let me offer a brief rejoinder to Charles Barzun’s response to the Posner/Vermeule paper on the Inside/Outside Fallacy; both are recently published by the University of Chicago Law Review.

Eric and I suppose that successful arguments (in constitutional theory, inter alia) must pass through two separate, independent and cumulative filters: (1) a requirement of logical consistency (the inside/outside fallacy is one way of violating this requirement); (2) a requirement of substantive plausibility (not ultimate correctness).

With respect to some of the particular arguments we discuss in the paper, we say that the argument is caught in a dilemma — it can survive filter (1) only by taking a form that causes it to be weeded out by filter (2). Now in some of those cases, I take it, Charles disagrees with us that the argument fails the second filter. He is of course entitled to his views about that. But the inside/outside fallacy — which is the first filter — is strictly about the logical consistency of assumptions, not their plausibility. Thus the fallacy has already dropped out by that point; it is not affected at all by whatever happens in the debate at the second stage. It’s just a muddle to say that because Eric and I do happen to have substantive views about what counts as plausible for purposes of the second filter, we are therefore smuggling substantive content into the first filter. Not so — unless one subscribes to the postmodern view that logical consistency is itself a substantive requirement, thereby jettisoning the distinction between validity and truth. (In some passages, Charles seems willing to abandon himself utterly to that hideous error, but for charity’s sake we ought not read him so, if we can help it).

So when Charles says that the inside/outside fallacy smuggles in substantive assumptions, I think that’s a confusion that arises from failing to understand the distinction between the two filters. The reader of Charles’s piece should be alert for skipping to and fro between these distinct questions of logical consistency and plausibility.

Adrian Vermeule

(And see Eric’s earlier reply.)

Kirkland and Ellis Distinguished Service Professor, University of Chicago Law School