Accept No Substitutes

William Baude’s recent lecture “Beyond Textualism?” has been making the rounds in conservative circles, including a response here from Adrian Vermeule and Connor Casey welcoming Baude’s agreement that the natural law would have been accepted as “unwritten law” among the Founders. Baude has responded on Twitter that his position is not new and in fact remains originalist.

Now I’m just a caveman patent lawyer, not a constitutional law professor—their world frightens and confuses me! But it seems to me that the dispute can be summarized in the following manner: Baude would accept natural law jurisprudence because the Founders interpreted their own law against that background, and therefore it is a valid interpretive principle today as well. In contrast, Vermeule and Casey would say to apply natural law principles because they are true and accurate principles of law, regardless of whether the Founders applied them or not. The first version is positivism (though perhaps of a Pickwickian kind), whereas the second is natural law.

And if that is the case, I will confess that in my younger days as a law student I would have taken Baude’s side. There is an attraction to it for lawyers of a conservative bent: “It is not I who have taken this or that position that seems at odds with general public mores today, but we must apply the law that was publicly enacted by the Founders. We cannot contravene their law, can we? And unless you change the law, well, you have to accept these essentially conservative positions of the law.”

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Conor Casey & Adrian Vermeule^[1]

On 28th February, William Baude of the University of Chicago Law School delivered the annual Scalia Lecture at Harvard Law School,^[2] titled “Beyond Textualism?”—with startling results. Startling but also welcome, as we will explain.

The main question posed by Baude at the outset of his lecture is whether textualism is “missing something important”? Baude began in a conventional register by suggesting that textualism is said to reflect the “basic insight central to the structure of our government…and fabric of our law” that the job of the interpreter is (a) usually to enforce rules that have been made some place else, not to make the rules herself; and (b) not to imagine decisions that were actually never made by the legislature. In general, says Baude, the results of the “textualist revolution” have been “salutary” for embedding these ideas into legal practice and thought.

The talk, however, then took a sharp and surprising turn—indeed a turn towards the very approach to legal interpretation, the classical approach, that Ius et Iustitium was founded to advocate. Baude’s answer to the question posed at the start of his lecture turned out to be an emphatic yes. Textualism is grievously incomplete, Baude now argues, chiefly because it fails adequately to take account of other sources of law, including “unwritten background principles” and “natural law.” (Yes, everything in quotation marks is a quote from the lecture). Continue reading “The Owl of Minerva and “Our Law”” →