A few brief thoughts in response to this interesting post on the Dobbs case by my esteemed colleague Steve Sachs. (I say nothing about Steve’s broader body of work, apart from the post). Steve writes that a failure to overturn Roe v. Wade would be an “extraordinary black mark for the conservative legal movement,” but would in no way damage originalism as such. After all, “[p]eople can call themselves ‘originalists’ and still be wrong about the original Constitution, just as they can call themselves ‘historians’ and still be wrong about history.” On Steve’s view, cited in the post, originalism is a standard that defines the rightness of right answers, not a decision procedure, let alone a foolproof decision procedure, for identifying those answers. It follows that originalism is untouched by any given misapplication of the standard, or even a long series of misapplications. “What kind of views of the Constitution do you hold, if you’d go look for new ones based on what some robe-wearing politician-approved bureaucrats say?… If you think originalism requires overturning Roe, and if it turns out that the Court’s self-described originalists still won’t do it, why conclude that originalism is lousy, and not that the Justices you’re mad at are lousy originalists?”
Even the committed originalist might start to have doubts, however, about a standard that is applied incorrectly even on a question, the validity of Roe v. Wade, that conservative originalists have repeatedly described as surpassingly easy—and what’s worse applied incorrectly by the very jurists who have been handpicked by the conservative legal movement, over a number of years, with an eye to fidelity to originalism and to their stellar credentials. If the crème de la crème of the conservative legal movement are “lousy originalists,” who exactly can use the method properly, and who exactly should be sitting on the bench? A standard that provides unreliable guidance even to those trained for a professional lifetime in its use might justly be suspected of being so vacuous, or manipulable, or simply so far out of accord with the true nature of the subject matter, as to amount to no standard at all. We have no trouble with this point in other walks of life. If someone said that all actually existing accountants were lousy at applying accounting standards, we might well start to suspect that either the speaker had a poor theory of what the standards require, or that the standards themselves are not fulfilling their role as standards. When Justice Gorsuch wrote the explicitly originalist opinion for the Court in Bostock, a number of originalist critics tried to defend the theory by condemning the man, saying that Gorsuch had simply done originalism wrong. But if a Marshall Scholar and John Finnis student who wrote a whole book on originalism can’t do it right, it’s time to start wondering whether the fault lies in the theory.
Here Steve’s analogy between historians and originalists seems almost backwards. “Historian” is a profession, not a standard of validity. The proper analogue to “historian” is “lawyer.” Just as historians may and do disagree over standards of validity for historical claims, so too lawyers can and do disagree over standards of validity for legal claims. Most lawyers who have ever sat on the Court, and almost all lawyers in the world today, are not originalists, and the legal profession will not become something else entirely if the profession discards or downplays originalism—in my view a rather recent innovation that has attempted to project an invented tradition onto the past.
All this said, one wonders if the issue doesn’t lie deeper. For Steve, originalism has a distinctly gnostic quality. It is at least partly independent of, disembodied from, the people who practice it; the error of its practitioners and the sins of the flesh can never touch the inner light of theory. He writes that “[a] theory is more than the group of people practicing it: there’s a big difference between originalism and ‘Originalism Inc.’” On a different view, however, legal theories are always situated and embodied. They are ways that people bring coherence to, make sense of, the rules, customs and practices of the polity they observe around them, tacking back and forth between theory and practice, between alternative interpretations of the positive law and intuitions about what the moral law requires, in “reflective equilibrium.” (Yes, even Rawls wasn’t always wrong). Legal theories are always bound to a concrete situation.
This does not at all imply that they cannot transcend that situation. It is a central paradox of the classical law that precisely when and because jurisprudence is concrete and embodied, it becomes more not less aware that it participates in the enduring natural law. I strongly suspect that the recent revival of interest in classical jurisprudence arises not from abstract argument, but from sheer observation of a society, our own, whose rules, customs and practices cause many to ask themselves what’s gone so badly wrong. When they do so, higher law presents itself naturally to the reason, and the classical approach of interpreting the positive law in light of, and as compatible with, the higher law becomes ever more appealing. Conversely, the conservative legal movement and its institutions have been originalism’s major champions for a generation. Should that movement be damaged by events, the theory cannot remain untouched, even if a few academic holdouts remain.
Steve’s peroration is a final analogy: “For comparison: if Roe survives, it’d be despite a 6-3 Catholic majority on the Court. Would it make sense for a Catholic to pick a new religion, just because of what some of the six Catholic Justices do in Dobbs?” But, of course, precisely the problem from my point of view is that the Justices aren’t judging with a view to the natural law and the common good. Indeed they quite self-consciously aren’t, and feel no obligation to do so. Or so the public theorizing runs. Whether they actually judge in light of the common good despite themselves, judging better than they know, is another question. I think that the caselaw shows that they frequently do, both expressly and implicitly. This is in part because the natural law, as the real nature of law, exerts an inescapable pull even on those who deny it to themselves. But if you’re interested in that question, you’ll have to buy my book.
Adrian Vermeule