[Ed.: for this guest post, commenting on Bill Watson's paper "The Plain Meaning Fallacy," we welcome back Evan Bernick, Associate Professor of Law at the University of Northern Illinois College of Law.]
Bill Watson’s post on the “Plain Meaning Fallacy,” like his (generally excellent!) underlying article, seems weighed down by a subtle confusion between descriptive and normative accounts of originalism, as well as a misunderstanding of a leading descriptive account. The result is a compelling argument that suffers from misplaced criticism of at least two originalists.
Watson claims that a Hartian positivist account of law suggests that plain original public meaning is the law. He defines plain original public meaning thus:
A constitutional provision’s OPM is plain with respect to some case insofar as reasonable legal experts today would (1) agree that reasonable legal experts at the time of ratification would have understood the provision to communicate a certain content and (2) agree on how that content applies to the case at hand.
Un-plain original meaning, then, is all other original public meaning, and Watson claims that un-plain OPM is not the law. Therefore, he contends that Will Baude and Steve Sachs are somewhat right, mostly wrong, to claim that “originalism is our law.” Officials (and, according to Baude and Sachs’s gloss, members of the public more generally) need to converge around any rule of recognition that specifies the criteria for legality around here, on a Hartian account. Watson asserts that there is no convergence around un-plain OPM, so the latter can’t be part of our rule of recognition.
I think this is probably right—un-plain OPM is not our law. But do Baude and Sachs claim otherwise?
In a response to Charles Barzun’s critique of their work, Baude and Sachs claim that originalism is underwritten by our rule of recognition and is “our law” in at least seven respects. Helpfully, they provide a list:
(1) We treat the Constitution as a legal text, originally enacted in the late eighteenth century.
(2) This constitutional text regulates the selection of legal officials, even when such regulations are unpopular or contrary to tradition.
(3) Actors in our legal system don’t acknowledge, and indeed reject, any official legal breaks or discontinuities from the Founding.
(4) We rely on technical domesticating doctrines, themselves rooted in preexisting law, to blunt the practical force of novel originalist arguments.
(5) Original meaning sometimes explicitly prevails over policy arguments in constitutional adjudication, but the reverse doesn’t seem to be true.
(6) Our treatment of precedent makes sense if original sources determine the Constitution’s content but not if precedent does.
(7) More generally, there are no clear repudiations of originalism as our law in the current canon of Supreme Court cases, even in situations where the Justices must have been sorely tempted. (“Grounding Originalism” at 1477-8).
As far as I can tell, none of these premises about originalism being “our law” commit Baude and Sachs to the conclusion that judges “converge in searching for a constitution’s most likely OPM all the way to the point where one reading is a smidge more plausible than another.” (Watson at *23). That’s a problem for Watson, insofar as he understands the falsity of that conclusion to require the amendment of their thesis.
Now, Watson might well respond that in that event the Baude-Sachs “our law” thesis does not have much bite and that originalists still do not have thickly normative reasons for following un-plain original meaning. That’s a problem for originalists to the extent that (1) they are making thickly normative claims and (2) original meaning is often not plain enough to resolve very much. It’s also not a problem that Baude and Sachs have together tried to resolve by providing normative arguments for either plain or un-plain meaning. Baude has separately endorsed an oath-based normative argument for following originalism-as-law, but Baude and Sachs in their joint work are very expressly not engaged in a thickly normative project and Sachs has never owned thick normativity in this context. Regardless, Watson would still have to accurately describe the our-law claim before challenging any thickly normative justification that Baude or Sachs might provide for it.
I do think that Watson is on to something. There’s a gap between what Baude and Sachs expressly claim and the public reception of their arguments, particularly among conservatives. When conservative originalists say that originalism is our law, they often mean that original meaning legally beats all comers, regardless of whether it is plain, and that original meaning (plain or unplain) is therefore normatively binding on judges who promise to obey the law. I’ve argued that the ought does not follow as easily as that, and I’m glad that Watson ends up in a place of substantial agreement. But these charges of fallacious reasoning seem mistaken, even if not plainly so.
Posted at 6:01 AM