A Mini-Crisis of Originalism

Thoughts on a Growing Conflict

This post is not about a Twitter dispute, nor is it an attempt to evaluate the merits of a sharp and increasingly bitter rift over historical scholarship bearing on the removal powers of the President and associated questions of executive power. But it starts with those things. I have not been a participant in these debates; I discuss them only in order to emphasize a methodological point that classical lawyers have been making for some time now, and that the recent dispute merely reinforces.

The background is a running and now heated altercation within the set of those who do historical legal scholarship, many but not all of whom self-consciously subscribe to originalist methodology. The immediate subject of the debate has been the removal power and the executive power generally — especially the scope and limits of the President’s power to remove executive officers (including, as a critical sub-case, the power to remove officers in the so-called “independent agencies.”) I should note for the sake of candor that my own views on this topic are rather radically “unitarian.” Indeed, as I have explained, I think the major precedent supporting the unitary executive, Myers v. United States, did not go far enough, in the sense that it failed to follow through on its own logic; and I further think that the logic of the recent decision in Trump v. United States, read for all it might be worth, supports an enhanced version of unitary executive theory in line with my own views and more consistent and thoroughgoing than Myers. But I do not reach those conclusions on originalist-historical grounds, and the substance of my views is irrelevant to the methodological point I want to make here.

On one side of the debate are originalist scholars like Sai Prakash, whose work I admire immensely, despite sharing very few of his methodological premises (although I note that Prakash’s originalism is somewhat heterodox; he has recently argued that the “reason and spirit of the law” is an important modality of interpretation even for originalists, a point earlier underscored by Judge Paul Matey). On the other side are scholars like Julian Davis Mortenson, whose work I also admire immensely. Mortenson, to be clear, does not identify as an originalist per se; he is a constitutional pluralist who holds that history is sometimes relevant to constitutional interpretation, and who sometimes writes in an originalist register in order to interrogate originalist arguments on their own ground. Yet there is an important sense in which the debate is nonetheless intramural, conducted on common historical premises. Both sides engage in exhaustive historical research to show that the founding-era understanding or meaning of relevant constitutional provisions and powers is best seen in a certain way, although they differ sharply as to what that meaning is, or was.

In various law reviews, and with various combinations of authors and coauthors, these two and other scholars, such as Aditya Bamzai, Andrea Katz, and Noah Rosenblum, have been engaged in an increasingly sharp academic debate about presidential removal power and executive power. (The references are collected here). The debate recently broke out onto Twitter as well, when Mortenson expressed frustration that his opponents had not responded to his arguments in good faith, in Mortenson’s view. The social media aspect of the debate has in fact been one-sided, in the sense that Prakash as far as I know has not engaged in it at all and has no Twitter presence, and so too with Prakash’s sometime co-author Bamzai. As of this writing, the main reply to Mortenson has come from tweets and a blog post by an originalist, William Baude, who has called for scholarly civility and “careful, patient engagement” (virtues it is apparently easier to praise than to practice).

Whatever the substantive merits, whoever is in the right, the main thing to observe is that the whole controversy underscores the feebleness of a claim often heard from originalists and legal positivists generally: that originalism, because of its historical focus, “fixes” legal meaning in a way that endures over time, and therefore does better at reducing disagreement than does classical legal theory. Versions of this argument are ubiquitous, both from judges and from academics.

In the Bruen decision, for example, Justice Thomas argued that originalist history-at-the-level-of-specific-questions is more “administrable” and “workable” than alternative approaches, mainly because “[t]he job of judges is not to resolve historical questions in the abstract; it is to resolve legal questions presented in particular cases or controversies. That legal inquiry is a refined subset of a broader historical inquiry, and it relies on various evidentiary principles and default rules to resolve uncertainties” (internal quotation omitted). Put aside that Thomas himself immediately conceded that history has to be applied through analogical reasoning, which is necessarily normatively-inflected; and put aside that the antecedent choice of default rules and evidentiary principles is itself an irreducibly normative and justificatory enterprise, so that historical “closure rules” are just ius for originalists. The point here is that the intensity and interminable quality of the debate over the history of removal power suggests that Thomas is empirically wrong. It is not as though removal (and executive power generally) is some obscure or ancillary issue. It is, plausibly, the single issue on which most originalist-historical ink has been spilled, yet there is no sign that the endless effort to do specific history in this domain has reduced disagreement. Indeed it has probably exacerbated it. Other examples are legion; consider, to take only one recent and highly visible example, the virulent disagreements among originalists over the meaning of Section 3 of the Fourteenth Amendment, and its effect on the qualification for office of former President Trump.

Classical lawyers, accordingly, have long contested the claim that originalist historicizing does much to fix or liquidate the meaning of particular provisions or the scope of specific powers. History rarely, if ever, settles debates at this level of detail, especially in any case that is currently contested. Classical lawyers of course draw upon history, in part to understand the reasoned choices of lawmakers, but not for specific understandings of specific provisions. Rather they see the millennia-long tradition of Western law (and comparative law as well) as repositories of general background principles that, when sufficiently enduring and widely applied, provide structured legal presumptions for understanding lawmakers’ choices, and indeed provide powerful evidence of the real nature of law, understood as reasoned ordering to the common good. This classical turn to general background principles, rooted in tradition, is evident in the recent decision in Rahimi, written by the Chief Justice and heavily influenced by an amicus brief from the Catholic Bishops’ conference. Rahimi unmistakably walked back on Bruen’s specific historicism, in favor of “the principles that underpin our regulatory tradition.”

Mention of the Chief Justice brings us to a final irony of the whole debate over removal and executive power. To whatever extent the Justices are the intended audience for the participants in the current originalist-historical debate, it is hardly clear how much of the audience is listening. The main actor in, and author of, the Court’s removal jurisprudence and executive-power jurisprudence for over a decade now has been the Chief; and the Chief is no real originalist, certainly not at the level of specific history. Rather his opinions are heavily oriented to general structural and legal principles rooted in broad tradition, akin to the non-originalist structuralism of Charles Black. If the Chief sometimes (by no means always) ascribes general principles and structural inferences in a loose way to “the founding era” or to “the Framers,” it is quite obviously a polite façon de parler, a way of keeping his orthodox-originalist colleagues on board. And despite much talk of originalism, it is not even clear how many of the orthodox there really are. Thomas certainly, and Gorsuch much of the time; but then the roster begins to thin out, as Justices Alito and Kavanaugh heavily mix originalism with a kind of pragmatism, while Justice Barrett’s methods evolve from decision to decision. To the extent that the point of the historical debate has been to influence the Court, it at best supplies a few decorative cites one way or another, for removal decisions and executive power decisions quite openly justified and written — almost always by the Chief — on different, more classical grounds. Trump v. United States, for example, is almost entirely unburdened by originalist citations and methods in any specific sense; it is almost purely structural and traditionalist.

For those disheartened and confused by the scorching disagreements between and among originalists and counter-originalist historians, the classical tradition welcomes you home. Although most cases are easy, disagreements will always be with us in hard cases; they are merely the unavoidable precondition for law in any real legal system, given that unanimity of beliefs and preferences is never the condition of human societies. But the classical law articulates an age-old framework for addressing such disagreements, through structured presumptions and maxims of law, through respect for legal texts that nonetheless harmonizes such texts with institutional structure and traditional background principles, and through the judicial virtues of impartial legal justice and prudence, including prudent judicial deference to the reasoned determinations of lawmakers. No more certainty can be had in law, and any promises to the contrary are, rather obviously, quite illusory.