Originalism Off the Ground: A Response to Professors Baude and Sachs

Abstract

Professors Will Baude and Stephen Sachs are a legal realist’s worst nightmare. In their forthcoming Northwestern Law Review essay “Grounding Originalism,” they continue their Arthurian quest to convince the legal world that originalism has been and currently is our law. They denote this effort a “positivist” account of our legal practices and claim theirs is a more accurate description of constitutional law than competing theories such as common law constitutionalism and pluralistic decision-making. To legal realists, and most political scientists who study the Supreme Court, however, originalism is just one of many methods of constitutional discourse, and only a slight one. Far from being our law, originalism is used by judges mainly as a rhetorical device to justify decisions reached on other grounds. There is substantial data, as well as detailed descriptive accounts by experts, that strongly suggest that where judges have legal discretion, their values, experiences, and politics determine the sum and substance of our law. Those values, experiences, and politics, as this essay will show, do not reflect the values of people living in 1787 or 1868, or the law of that time, but our judges’ values today. The weakest aspect of Baude and Sachs’ recent essay, and their other detailed and complicated efforts to portray originalism, not just as part of our law, but as our law, is their failure to wrestle directly with legal realist and political science critiques of judicial decision-making.