Reading this, I am very curious about what kind of thing you consider originalism to be.
You write of originalism as being “true” in the same sense that heliocentrism is “true.” Does this imply that you believe originalism is a factual conclusion about the world in the same way that “the earth orbits the sun” is a factual conclusion? If so, what exactly is it factually concluding?
I have always understood originalism as a method, rather than a conclusion (and perhaps naively assumed that everyone else understood it the same way). So, the proper analogy for originalism is not something like heliocentrism but rather something like random survey sampling or linear regression. It’s a category error to describe a method as “true.” Methods can’t be true or false because they aren’t making factual claims about the world. Rather, they’re either “useful” or not; perhaps that is to be judged in whether they produce results that are true, but the methods themselves can’t be “true.”
You say "[b]ut whatever approach is right, whether originalism is or isn't the law, we ought to represent things accurately." But why ought we represent things accurately if not because it is a principle of the natural law?
I’m sorry but I find the underlying premise of this argument—that the content of the law is some kind of objective fact that exists independent of us, like the path of the sun going around the earth—extremely unpersuasive.
Can you explain why you think that we should think about the law this way? I know there are some moral philosophers who think that reasons are objective normative facts and in this way (eg, Tim Scanlon), but this is not a majority view and it seems like a premise one would need to justify.
Even if you grant the premise I think there is still a problem thinking that it is morally self evident that tracking the law as it really is morally justified and needs to further justification. Why is it morally right to accurately state what the law is? In scientific inquiry there are usually shared pragmatic reasons to accurately describe how the world is, not sure why these justifications would apply to the law. Put differently, why are we obligated to tell the truth about the law?
I may be misusing the term, but it could be an intersubjective fact, like the rules of grammar—they're not "out there" in space, but they're also not up to each participant. And I'd imagine that some of our shared pragmatic reasons to accurately describe how the world is extend to facts of this kind too.
Let's imagine a hypothetical. Suppose originalist sources 100% confirm the Federal Open Market Committee is unconstitutional because the President has to have complete control over any organ that engages in monetary policy, or alternatively because McCulloch v. Maryland is wrongly decided and central banking is not among the federal government's enumerated powers. (Both arguments that some originalists, make, by the way.)
Let's further suppose that if the FOMC were declared unconstitutional, the American economy would be thrown into the biggest Depression in our history, bigger than either the Long Depression or the Great Depression, killing millions of people, immiserating 100 million people, leaving vast segments of the American economy in poverty and leaving us unable to afford our obligations to the world, thereby putting China and Russia and India into a superpower competition as we become irrelevant, and leading to untold numbers of conflicts and wars around the world that kill 300 million people.
Now, you can do that, and say "thank God we got the Constitution 'right', there's no other question than what the law 'is', and the only valid way of determining what the law 'is' is originalism (even though the predecessors whose understanding we are supposedly channeling did not understand this to be the only valid methodology to determine what the law is, but never mind).
Or you can say "you know what, we're wrong-- there are other valid considerations in doing 'law', and one of them is whether your methodology leads to workable results. Obviously any methodology that would require us to destroy the country and imperil the world, especially while operating under the smug, egocentric conceit that 'we're the only ones who are really doing law', is a bad methodology we shouldn't use at least in this instance". And then you save the world.
As you can tell by my parentheticals, while I find the theory just obviously wrong, I find the smugness- the notion that only you guys are doing 'law' and the rest of us who actually care about whether we generate good and workable rules aren't doing law at all-- to be arrogant and infuriating.
Look, there's a reason Holmes is revered despite having some VERY problematic views and actions in his life-- and it's because of this stuff about the life of the law not being logic but experience. I'm not saying go all the way in the other direction either-- text, history, and tradition are all very important ingredients in the soup, and original understanding (and framers' intent, which originalists decry) has its role as well.
But it is absolutely correct that the goal of the legal system isn't to be perfectly logical or to make originalists proud of their smug superiority-- it's to work and generate good results. And if a theory of interpretation yields bad results, it sometimes has to yield and doing that is absolutely saying what the law is.
Sorry for the delay — still figuring out the substack-commenting thing.
To be clear, this paper prescinds from the question of whether moral facts like "workable results" might properly factor into determining what the law is. The one claim it makes about that is that once you take account of all the proper factors, even natural-law theories will sometimes produce legal obligations that don't match up with our moral obligations, as in the jaywalking case.
If you think every legal actor's legal and moral obligations are *always* on all fours, that's a view, but not a terribly plausible one—it's pretty inconsistent with pretty ordinary understandings of law, as in jaywalking. And once you agree that legal and moral obligations can *sometimes* come apart, well, now we're just haggling over the price. Slavery was a pretty bad result too! But anyone trying to argue that American law didn't permit it pre-1865 is fooling themselves.
I don't see that attitude as a form of smugness—it's a recognition that sometimes the law sucks, and that we should be honest about that fact! The paper's pretty explicit that in extreme cases the morally right thing to do might conceivably be to break the law, or even maybe to lie about it, and it doesn't try to figure out which cases those are. But it does insist that we be honest to ourselves, at least, about what we're doing in those cases.
Thank you for sharing.
Reading this, I am very curious about what kind of thing you consider originalism to be.
You write of originalism as being “true” in the same sense that heliocentrism is “true.” Does this imply that you believe originalism is a factual conclusion about the world in the same way that “the earth orbits the sun” is a factual conclusion? If so, what exactly is it factually concluding?
I have always understood originalism as a method, rather than a conclusion (and perhaps naively assumed that everyone else understood it the same way). So, the proper analogy for originalism is not something like heliocentrism but rather something like random survey sampling or linear regression. It’s a category error to describe a method as “true.” Methods can’t be true or false because they aren’t making factual claims about the world. Rather, they’re either “useful” or not; perhaps that is to be judged in whether they produce results that are true, but the methods themselves can’t be “true.”
Prof. Sachs,
You say "[b]ut whatever approach is right, whether originalism is or isn't the law, we ought to represent things accurately." But why ought we represent things accurately if not because it is a principle of the natural law?
Stephen—
I’m sorry but I find the underlying premise of this argument—that the content of the law is some kind of objective fact that exists independent of us, like the path of the sun going around the earth—extremely unpersuasive.
Can you explain why you think that we should think about the law this way? I know there are some moral philosophers who think that reasons are objective normative facts and in this way (eg, Tim Scanlon), but this is not a majority view and it seems like a premise one would need to justify.
Even if you grant the premise I think there is still a problem thinking that it is morally self evident that tracking the law as it really is morally justified and needs to further justification. Why is it morally right to accurately state what the law is? In scientific inquiry there are usually shared pragmatic reasons to accurately describe how the world is, not sure why these justifications would apply to the law. Put differently, why are we obligated to tell the truth about the law?
I may be misusing the term, but it could be an intersubjective fact, like the rules of grammar—they're not "out there" in space, but they're also not up to each participant. And I'd imagine that some of our shared pragmatic reasons to accurately describe how the world is extend to facts of this kind too.
Let's imagine a hypothetical. Suppose originalist sources 100% confirm the Federal Open Market Committee is unconstitutional because the President has to have complete control over any organ that engages in monetary policy, or alternatively because McCulloch v. Maryland is wrongly decided and central banking is not among the federal government's enumerated powers. (Both arguments that some originalists, make, by the way.)
Let's further suppose that if the FOMC were declared unconstitutional, the American economy would be thrown into the biggest Depression in our history, bigger than either the Long Depression or the Great Depression, killing millions of people, immiserating 100 million people, leaving vast segments of the American economy in poverty and leaving us unable to afford our obligations to the world, thereby putting China and Russia and India into a superpower competition as we become irrelevant, and leading to untold numbers of conflicts and wars around the world that kill 300 million people.
Now, you can do that, and say "thank God we got the Constitution 'right', there's no other question than what the law 'is', and the only valid way of determining what the law 'is' is originalism (even though the predecessors whose understanding we are supposedly channeling did not understand this to be the only valid methodology to determine what the law is, but never mind).
Or you can say "you know what, we're wrong-- there are other valid considerations in doing 'law', and one of them is whether your methodology leads to workable results. Obviously any methodology that would require us to destroy the country and imperil the world, especially while operating under the smug, egocentric conceit that 'we're the only ones who are really doing law', is a bad methodology we shouldn't use at least in this instance". And then you save the world.
As you can tell by my parentheticals, while I find the theory just obviously wrong, I find the smugness- the notion that only you guys are doing 'law' and the rest of us who actually care about whether we generate good and workable rules aren't doing law at all-- to be arrogant and infuriating.
Look, there's a reason Holmes is revered despite having some VERY problematic views and actions in his life-- and it's because of this stuff about the life of the law not being logic but experience. I'm not saying go all the way in the other direction either-- text, history, and tradition are all very important ingredients in the soup, and original understanding (and framers' intent, which originalists decry) has its role as well.
But it is absolutely correct that the goal of the legal system isn't to be perfectly logical or to make originalists proud of their smug superiority-- it's to work and generate good results. And if a theory of interpretation yields bad results, it sometimes has to yield and doing that is absolutely saying what the law is.
Sorry for the delay — still figuring out the substack-commenting thing.
To be clear, this paper prescinds from the question of whether moral facts like "workable results" might properly factor into determining what the law is. The one claim it makes about that is that once you take account of all the proper factors, even natural-law theories will sometimes produce legal obligations that don't match up with our moral obligations, as in the jaywalking case.
If you think every legal actor's legal and moral obligations are *always* on all fours, that's a view, but not a terribly plausible one—it's pretty inconsistent with pretty ordinary understandings of law, as in jaywalking. And once you agree that legal and moral obligations can *sometimes* come apart, well, now we're just haggling over the price. Slavery was a pretty bad result too! But anyone trying to argue that American law didn't permit it pre-1865 is fooling themselves.
I don't see that attitude as a form of smugness—it's a recognition that sometimes the law sucks, and that we should be honest about that fact! The paper's pretty explicit that in extreme cases the morally right thing to do might conceivably be to break the law, or even maybe to lie about it, and it doesn't try to figure out which cases those are. But it does insist that we be honest to ourselves, at least, about what we're doing in those cases.