At Dorf on Law, Eric Segall: Originalism Diluted. From the introduction:
In a forthcoming article in the Harvard Law Review titled “Originalism Standard and Procedure,” Professor Stephen Sachs continues his Arthurian quest to convince (not sure whom, academics, judges, philosophers, everyone) that originalism is indeed our law. This mission, which he and his frequent writing partner Professor Will Baude, have been on for a while, has generated numerous essays, articles, and blog posts sometimes referred to as the “positivist turn,” or “originalism is our law” originalism. In his latest Article, Sachs argues that originalism is a standard, not a decision procedure. In more common terms, he tells us that originalism is a “destination, not a route.”
Sachs says the point of borrowing the philosophical distinction between a “standard of rightness” and a “decision procedure” is to demonstrate, not that originalism is true, but that many arguments against originalism are wrongheaded. In his own words, “the uncertainty of our legal past, or the inconsistent behavior of originalism in office, might not count against the theory [of originalism] itself."
That originalism is difficult, or that reasonable people might disagree about what it shows in a case or series of cases, or that it is easily manipulated and/or evaded, does not disprove the theory because, according to Sachs, we often have standards of correct behavior that are hard to get right but which remain important, worthy, and highly desirable. For example, Sachs points to consequentialists, like retired Judge Richard Posner, who argue that judicial decisions should lead to the best consequences while admitting that how to figure out what that means is hard and usually contestable. So too with originalism. Even if we cannot all get there together, Sachs argues, having the destination is a good thing, and fights along the way are inevitable because humans (including judge and philosophers) are fallible.
When combined with his previous work, Professor Sachs suggests that “our law is the founders’ law until legally changed,” that originalism is at least a formidable contender for being the “founders’ law,” and that whether or not judges are or even could be faithful originalism is irrelevant to what our law is-which is, indeed, originalism.
Professor Sachs’s thesis is unpersuasive for a strange reason, given that he self-describes his work as positivist. The reality, on the ground, is that originalism was never our law at the Founding (just a small part of it), and that originalism (without strong judicial deference) as a final landing place is a road to nowhere but the imposition of personal value judgments by judges who hide behind misleading pointers to disputed historical evidence. It is unclear if Sachs even disagrees with all this because he says the "effectiveness" of originalism as a decision-procedure "is besides the point."
My view is that Professor Sachs' claim that originalism is a standard (and the conclusions that flow from that claim) can and should be separated from his claim that originalism is "our law." The former does not depend on the truth of the latter.
Posted at 6:35 AM