[Ed.: for this post we welcome Bill Watson, Assistant Professor of Law, University of Illinois Urbana-Champaign College of Law, for a post on his forthcoming article The Plain Meaning Fallacy (noted here), and some responses to my comments.]
In this post, I'd like to clarify the paper's argument a little. The paper stipulatively defines plain original meaning as, roughly, original meaning that is beyond reasonable dispute. The paper then argues that leading justifications for originalism fail to attend to the normatively significant differences between plain and unplain original meaning. For instance:
- Baude and Sachs argue that judges should enforce original meaning because it is the law. But on the Hartian picture of law that Baude and Sachs accept, only plain original meaning is the law. Unplain original meaning cannot be the law because legal officials do not converge in accepting and treating it as law. (Nor, to reference Baude and Sachs's spin on the Hartian picture, does our "official story" make unplain original meaning the law.)
- McGinnis and Rappaport argue that original meaning, in virtue of being accepted by a supermajority of ratifiers, is likely to be practically wise, such that judges are more likely to act rightly by following it than by reasoning on their own. But it makes no sense to follow a practically wise directive if you're sufficiently uncertain of what the directive is asking you do to. At some level of uncertainty, you're more likely to act rightly by reasoning on your own.
- Many originalists argue that enforcing original meaning promotes the rule of law (i.e., promotes predictability, consistency, and stability in constitutional adjudication). But when original meaning is not plain, judges can reasonably disagree over what original meaning is asking them to do. It's hard to see how enforcing unplain original meaning would promote predictability, consistency, or stability in constitutional adjudication.
- Etc., etc. The paper makes similar points with respect to other common justifications for originalism.
You specifically mention that, "if you think a judge's duty is to apply the law as directed by the law's enactors, to the best of the judge's ability, that doesn't depend on it being easy to find what the enactors' directions are." My response is, first, that plainness (as I define it) has more to do with disputability than with ease of discovery. But more importantly, for the same reasons that I use against Baude and Sachs, plainness matters to someone who thinks that it's a judge's duty to apply the law because unplain original meaning is not the law. Given a Hartian picture of law, and given my understanding of contemporary U.S. legal practice, once the Constitution's plain original meaning (and any associated precedent) runs out, the law also runs out. At that point, simply applying the law isn't an option.
Now, that response might be too quick. You include the caveat that a judge should apply the law "to the best of the judge's ability." One way of taking that caveat is as saying: "When the law (on certain philosophers' account of law) runs out, judges shouldn't fall back on discretion. Instead, they should enforce the norm that is the most law-like or the closest to being the law, i.e., that comes closest to satisfying the criteria for being law even though it lacks one criterion (plainness)." We could make the same point without using the (very slippery) word "law": "When the criteria that judges widely accept as criteria for identifying constitutional norms fail to resolve the constitutional question at hand, then judges should keep looking to the same criteria and should try to satisfy those criteria as best they can."
I'm not tempted by a position like that (at least when it comes to constitutional law), but I'm happy to concede that I don't have a knockdown argument against it. The point that I want to make is a negative one: originalists haven't yet offered a justification for a position like that. None of the common justifications for originalism adequately explain why judges should keep trying to apply the law "to the best of their ability" once plain original meaning runs out. Maybe such a justification is possible. But I haven't seen it, and I think that it would be very hard to do. You'd have to somehow show that judges ought to automatically defer to unplain original meaning (as opposed to balancing it as one factor among others), even though judges can reasonably disagree over what unplain original meaning is asking them to do in the case at hand.
Posted at 6:05 AM