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0:00
- Hi, everyone. And thank you for joining the Constitutional Law Institute's inaugural Constitution Day conversation. I'm Libby Seguin, the new manager of the Institute. Professor Baude is the faculty director. We hope this Constitution Day conversation becomes a yearly event here at the law school, with obvious goals of it being in person next year. The Constitutional Law Institute is a new research center here at the law school. The Institute will highlight faculty research,
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will hold events, speakers, and conferences in the future, and we have exciting plans to host a podcast this upcoming year. While we are working on getting our website up and running-- we are that new-- please follow us on Twitter @uchicagoconlaw. Our future events will be posted on our website, but for the time being please check the law school's events page for future events. If you have any ideas or suggestions for events, topics, or speakers, please reach out to myself or Professor Baude.
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We have three great speakers here with us today, and I'm honored to introduce them. The first is William Baude. He is a professor of law and Aaron Director Research Scholar here at the law school. He teaches federal courts, constitutional law, and conflicts of law. He received his bachelor's in mathematics from the University of Chicago, and his JD from Yale Law School. He then clerked for then Judge Michael McConnell on the United States Court of Appeals, and Chief Justice John Roberts, Jr.
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on the US Supreme Court. Before joining the Chicago faculty, he was a fellow at the Stanford Constitutional Law Center and a lawyer at Robbins Russell. Next, we are thrilled to welcome Farah Peterson. She is a legal historian who focuses on statutory interpretation. She holds a PhD in American History from Princeton University. She earned her JD from Yale Law School, and received her bachelor's in history from Yale as well. After law school, she clerked for Associate Justice Stephen
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Breyer on the US Supreme Court, and Judge Guido Calabresi on the US Court of Appeals for the Second Circuit. Previous to joining the law school, Farah was an associate at Jones Day, an associate law professor at the University of Virginia School of Law, and was a visiting professor at Georgetown University Law Center. Last, please give a warm welcome to Stephen Sachs. Stephen is a professor of civil procedure, constitutional law, and conflicts of law at Duke Law.
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He clerked for Chief Justice John Roberts, Jr. on the US Supreme Court, and clerked for Judge Stephen Williams on the US Court of Appeals for the DC Circuit. He then practiced in the litigation group at Mayer Brown before joining the faculty at Duke Law. Stephen received his bachelor's degree from Harvard. He was a Rhodes Scholar, graduating from Oxford University, and received his JD from Yale Law School. I will now turn it over to Professor Baude. - Thank you, Libby.
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Thank you everybody for coming. So this is our first event, so to speak. And I'm really excited to have Steve and Farah, both of you here joining us. In addition to the fact that you're two of my favorite constitutional law scholars, one thing that brings all three of us together is an interest in I guess what we call the law of constitutional interpretation-- that there could be legal rules for interpreting the Constitution, and that might tell us something.
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So I just wanted to sort of start talking about that. And Farah, if you don't mind me putting you on the spot for just a second, part of my inspiration for doing this is an article you have coming out in the Yale Law Journal that was sort of one of the most mindblowing things I've read in a long time when I picked it up, called "Expounding the Constitution," which I guess uncovers that there was a bunch of law for interpreting the Constitution,
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for interpreting things in general back at the founding that somehow people don't know about anymore. So do you mind just telling us what you found and how you found it? - Sure. Well, I was reading some early Supreme Court cases-- the major hits of the Marshall Court, including McCulloch v. Maryland for an event at Georgetown celebrating its bicentennial. And as I was reading through it, I realized all of these arguments and counterarguments about how to interpret the Constitution are incredibly
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familiar. They sound in the same kinds of arguments that people made at that time about interpreting statutes. As I read more cases with this kernel of an idea in mind, I saw that, indeed, the same conventions of interpretation that would form the basis of arguments over other kinds of public law were in the toolkit of lawyers arguing over the Constitution in the early 19th century and late 18th century. And that this really hadn't been talked about. So that's what the paper is about it.
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It reveals that there was a law of interpretation at the founding. And that one of the major arguments of the early national period was which of those laws of interpretation applies to this new-fangled thing, a written federal Constitution. - Yeah. And I should say, I'm starting asking these questions, but I'm hoping everybody will sort of jump in, and we'll just talk. But I have many questions. So Steve, does this surprise you? - No. I'm glad to hear it.
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I think that it confirms additional things that were suggested by the early literature, but I think turns up a lot of really important new discoveries on what they thought this new Constitution was doing. I think one problem that modern-day constitutional interpretation has had is that-- to use a metaphor that might be familiar to a Chicago crowd-- it treats the Constitution like manna from heaven. It treats it just something that plopped in our laps,
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and what are we to make of this new document? And we have absolutely no idea. So if we have no idea, we might as well make the Constitution the best that it can be. And I think one of the things that we learn when we look at the history is that, in fact, the Constitution is not just sort of dropped down from heaven. It's actually the product of a real enactment process-- the product of politicking, and the product of decision-making. And it was seen as adding something
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to the existing stock of law. And so if we want to keep applying it today, it's useful to know what exactly it did or did not add to that stock. - But on this manna from heaven problem, I guess-- like expanding the Constitution in McCulloch make me think of this line that every con law professor is obligated to quote in the course of teaching constitutional law, we must never forget that it is a constitution we are expounding. And that sounds like John Marshall saying, no, no.
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This is manna from heaven. It's not-- you might think it's a statute, but it's not a statute. You might think it's a contract-- it's not a contract. No. It's a constitution. And of course, that's different from all the other things. So isn't that him saying actually, none of the old rules apply. This is just like a-- it's a constitution. Or what does that mean? - Well, I think that you have to read that in the context of the word constitution.
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What did the word constitution mean for late 18th century legal thinkers? They had been using this word for hundreds of years. And what it meant was literally how the society is constituted. Just because parts of that Constitution are not written down doesn't take it out of the fund of law that has to do with tradition, that has to do with the public welfare, and with the traditional organization of society. And the way I read that phrase in this paper
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that's coming out October 1 or so is that he was entering a bid for a position on what kind of law, and therefore, what convention of interpretation ought to be applied to that law that the Constitution was. And his bid was, this is as public as it is possible to be. And at the time, a public law like public legislation would be interpreted equitably. It would be interpreted broadly. It would be interpreted as sort of setting out the broad outlines that future judges should fill in
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as needed as new circumstances arise. And that's what he was doing in McCulloch, and this was-- this phrase comes at the end of a paragraph in which he is strongly defending that view of its characterization. - So I guess-- right. But he says-- one of the things he compares it to is a legal code. He doesn't admit to the prolixity of a legal code. So that sounds like it's-- I think that's a statute. Or is that is also not-- - So I took some trouble to figure out exactly what was he talking about.
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He took-- - Tell us. - Yeah. He took that phrase from the argument of one of the council. And it's one of those rare phrases that doesn't repeat a lot in the available records that-- at least, that I could search from the 19th century. But those pieces that I did find suggested that what he was talking about was the kind of codification of the private law of a nation, of the law of contracts, the law of property that other jurisdictions would attempt--
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France would attempt later, but that no Anglo law jurisdiction had ever attempted. So he was saying, our Constitution, like all of our public laws, doesn't partake of the prolixity of the code of a system that tries to deliminate each detail and discuss each detail of the law ahead of time. Instead, we have a kind of law that requires filling in gaps. So when he said, this is not-- this does not partake of the prolixity of a legal code, he was saying, this is not a detailed law.
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This is not-- this doesn't partake of the type of detail that foreign jurisdictions might use in places that are attempting codification. No. This is a traditional Anglo public law, and that means that it's subject to equitable interpretation. - It's interesting to think here of Jeremy Bentham's efforts and others to try and codify English law, and they all crashed and burned pretty miserably, just because it's very hard to codify an enormous common law tradition and get it right.
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And I think that Bentham was very unhappy about the way that every new statute that was enacted. He said it was like pouring water into the sea. You have no idea what parts of the law it's going to affect and might affect it. And I think that that's very much the common law tradition, that you have statutes. They're additions to an existing set of law. And if you want to understand them, you have to know what the law was beforehand, and what they did to it, and how they changed it.
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And I think that it's useful to know that the Constitution sort of can't be expected to specify in the nth degree. It doesn't mean that it doesn't specify some things. It doesn't mean that there's not an awful lot of content there, just as there is in the standard Anglo American public law. But that we should not be surprised that it requires a good deal of legal reasoning sometimes to figure out. - Yes. And also, I think that it's uncontroversial to say
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that many of the great jurists of that time didn't think that the Constitution described all of the fundamental law of the new nation. I remember in Chancellor Kent's opinion that was appealed in Gibbons v. Ogden and reversed, he discusses the several different sources of fundamental law, including something that might be generalized as natural law if we're looking back at it from this day, but at that time would have been considered as something just like the unwritten constitutional law
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that they entered into the early national period with-- things like, no man should be a judge of his own cause. That principle didn't get into the written Constitution, but there's no question that they thought that it was fundamental in some way and would have relied upon it in interpreting a legal document going forward. So when did this transition from a constitution that writes down some of the fundamental law, to our new imagination that the Constitution is everything,
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and if it's not written down there, then we can go nowhere else-- we have no other recourse. That transition certainly hadn't happened by the early 19th century. - So this is taking away from something, but I'm too fascinated to stop. So this sounds like it's-- you're saying that it's not just that there was a law of interpreting the Constitution, but there was extra quasi-constitutional law or unwritten constitutional law, like substantive rules also hanging around there.
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Would they have worked the same way? Could a judge strike down an Act of Congress on the grounds that it didn't contradict a provision of the written constitution, but it contradicted the principle that no man should be judged in his own case? Or-- - So this was a heated discussion. You can read about it in Calder v. Bull, for example. You have these opinions going back and forth about, well, how can we know whether it's OK for a legislature to strike down a legal ruling of a lower court?
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How do we know what is essentially legislative? - In one sentence, for people in the audience, Calder v. Bull is-- - Ah. Calder v. Bull was a 1793, I think, Supreme Court case that dealt with-- gosh, one sentence-- a disappointed litigant had appealed to the Supreme Court after their positive ruling in a probate case was reversed by, I think it was the Connecticut legislature. And their claim was this is an ex post facto law. They passed a law that undermined our legal claim.
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- And so the Constitution says, states can't pass ex post facto laws. And so one question is like, well, technically, what does that mean? Does that apply to this? Or does it only, as we now say-- as the court says in Calder versus Bull, is that only criminal law? - Right. - Right. But in-- - And the other question, a previous question, was well, is this even a law? And how can we tell? Is it possible for a legislature to be a court of appeal? What sources of law do we have to decide
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what tripartite government requires in a state or in any government? And so there was this sort of heated discussion about, well, do we have eternal principles that apply to this situation? Is there some sort of natural law answer to this? Do we only have what's written down, or do we have to go to custom? How do we decide what to decide here? And I think the answer that ex post facto is only criminal was the easy dodge of a sort of nest of interesting questions
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that could have been answered in that case. - But doesn't the court, therefore, implicitly say, no, there's no natural law here. We're not-- if it's not banned by the Constitution, we're not going to get into the business of enforcing-- of deciding what is a law or any of this natural law stuff? Or-- - Well, there's [INAUDIBLE] opinions. What does the court say? I think you have to reduce it to its holding. We have no idea what their outcome
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was on the question of whether natural law stands or falls. They, I think, agreed to disagree. - And you certainly see voices like Judge [INAUDIBLE] who say, no. If the legislature reached this answer, we can't upset it as an argument for natural justice. But you also do see sort of relatively well-distributed views about preexisting common law rules that the Constitution might not have upset. So it's not necessarily that there are rules that are super constitutional
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or sort of of constitutional stature, but rules that help us figure out what kind of legislative powers the Constitution did or didn't recognize. So a good example would be the rule that a legislature-- Congress, for instance-- can't make its laws unamendable. In DC and forts and arsenals, they can pass exclusive legislation in all cases whatsoever. So you would think that that would mean they can do anything that a legislature can conceivably do. But at the time, that would not have
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been thought to confer a power to make your laws unamendable. The common law rule against that was sufficiently strong that nobody would have thought that that power was conferred on Congress. And so I think that's an example where, yes, if Congress did try to say, here's our law for DC. The tax rate is 10%, and it can never be any more than that, and no future Congress can amend this, you would have a court-- if a future Congress did try and amend it-- strike down the earlier
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part of the statute, saying, this is just not among the legislative powers that was given to Congress. And we know that not because they had a specific exclusion for it, but because the kind of general conferral that they made would not have been thought to confer this power. This was sort of left out. - And to the question of whether these are background common law rules that we can draw upon to help us understand how they understood their super law, the Constitution,
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or whether there were sort of concurrent constitutions, some of which were overlapping and died out, I think that it's important to sort of put ourselves in their shoes and think, well, if I had grown up my whole life under one type of Constitution, could I change my entire way of being overnight and start arguing in courts of law as though that old way of thinking about the Constitution, all the vocabulary applied to it, no longer applied? Or would there be a transition period in which people
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were a little bit unsure. How fundamental is this old rule that I used to think of as reliably fundamental when comparing to any statutory law? How does that compare to the written constitution? So I think that there may have been a little bit less security, intellectual security, about the question of, what is fundamental law, especially right after the ratification of the Constitution. - So to vastly oversimplify a dialogue between Hamilton and Brutus when they're debating,
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have the federal judges been given too much power? And what's going to happen here-- you know, Hamilton and the federalists, and Brutus and his responses. One of Brutus's fears is equitable interpretation. He says, look, the federal courts have jurisdiction and equity, and they're going to get their hands on this constitution, and who knows what they're going to do with it? Equitable courts can do all sorts of crazy stuff. So there's just no telling what kind of principles
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they're going to pour into this document, even if the text looks pretty good. And one of Hamilton's responses is, no, no. That wouldn't happen. Judges are going to be bound down by strict rules and precedents. They're not going to make up crazy stuff. Like, it's all-- so am I hearing-- Steve, are you-- am I hearing you echoing the Hamiltonian side? Like, these are well-established common law rules. The judges aren't supposed to get too crazy. And Farah, are you taking the Brutus side,
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that really, there's less security in that than you think, or-- - Well, I don't think that's exactly what Hamilton said. - OK, good. - He said, there is nothing in the Constitution that directly empowers judges to judge this document by equity. They will have no more latitude in doing that than your other judges. So it's really-- you could read it as a rhetorical dodge. He is a very good and practicing lawyer who has argued for equitable interpretations
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of public legislation in many of his cases. He knows what it means to empower judges to do no more than what they can do in other cases. It's a lot. It doesn't defeat Brutus's worry except rhetorically. - And I would never shy away from the label of Hamiltonian on this. But I think that that's generally right. He's saying, look, they got all the usual powers. But part of what he's saying is, don't be too scared of that, because you've lived with that in lots of other contexts.
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And I think there is this implicit "the usual powers are not all that crazy" sort of message. - Yeah. So I guess-- so-- well, you probably both just picked this theme coming. So are things different today? Are the things that judges do to the Constitution now more or less in line with what would have been called equitable interpretation then? Or is there a difference between all the, I'll say, crazy stuff judges do to the Constitution now? Yeah.
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Are we still living under the same principles or not?
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Either of you, yeah. - So I'd say that we are, certainly in the sense that the judges appeal for their authority to the same sources that they would have appealed to then. So whether the justices in practice are doing what they ought to is one question. Whether they in theory are claiming more authority than they used to have, I don't think so. So I don't think that any Supreme Court opinion explicitly claims more authority than the Jay Court would have had.
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They might make incorrect historical claims about how much authority the Jay Court had. But I think that they see themselves as sort of bound down by what the original arrangements were, unless something else has happened legally to change that. I'm not sure that necessarily it has. - So I think that the rhetoric does share a lot over the ages, and I think that's important. As cosmetic as it may be, using the same terms, the same phrases, the same style of argumentation
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helps encourage faith in the legitimacy of the outcomes and connects us over time with the past. So I'm not saying this is nothing, but I tend to think that a lot has changed, even the referral to the past-- originalism, as it exists at the Supreme Court today, I think it's hard to compare to any originalist-like statements that you might see in the court only 10 years or 20 years after the Constitutional Convention. They may have referred to ideas about what was intended
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or what that might have meant. But is that really doing the same thing as referring back 200 years, when one of the sort of basic values in English and American law has always been that we cannot surprise litigants with outcomes that they couldn't have anticipated from basically the last 30 years of development of precedent? So for instance, we're not quite sure exactly how fundamentalist originalist the current Supreme Court may become. But say they were faced with a new question
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of constitutional interpretation, and an amicus brief shows them that a new trove of documents from the Madisonian collection has come to light. It has minutes taken down in excruciating detail that show that something that for the past 200 years we had consistently interpreted one way is actually a completely different thing. Suddenly, that upsets 200 years of precedent, and it surprises everyone. That I just-- I cannot believe that the judges of early America who, aside from their revolution,
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were largely committed conservatives, as most successful lawyers and judges are-- and that is, conservative in the sense that they want to conserve traditional ways of doing things rather than completely abandon the old ways. I'm not sure that that would have been in keeping with the way they would have judged a case. - I think that may be right. But I think that it's sort of hard to draw the analogy. Because they didn't necessarily have written sources of law
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that would have required that kind of treatment. So I mean, it's possible that you could-- I mean, certainly you have Madison talking about the ancient phraseology of the law. You could imagine someone saying, hey, this statute from 1580 that has traditionally been applied, turns out we've just been reading it wrong for the last 100 years, and for the first 100 years of its existence, it meant something very different. And what would they do with that?
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And there are discussions of reliance and of stare decisis around the time of the founding. But if the explicit source is something that's really, really old, there would certainly have been a lot of resources in their tradition to say, gosh, it has whatever content it had when it was adopted. There might be common law rules that have grown up around it since. But if we're trying to apply the statute, we have to apply the statute. I think that the difference in their attitude
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toward the Constitution today, and the difference in the-- oh, sorry-- back then as opposed to the job that a justice has today, is that it was easier for them to make, as Marshall often did, sort of unsourced pronouncements as to, of course, that this is what that meant. To the extent that it's more in living memory, it's just easier to do that. When you actually have to do some work to justify your statements of, oh, the Constitution clearly
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meant x, or it clearly meant y, your attitude towards it is going to be very different. - Well, I'm not sure that it's because the source of the information was in living memory that Marshall had an easier time of it. I mean, he was present at the ratification convention in Virginia. And he spoke there, and he made arguments about what the Constitution would mean that would later be about-- that represent an about face for him-- the kinds of rulings he made about the meaning
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of the Constitution when he was a Supreme Court Justice. It wasn't because he couldn't remember. It's because he was more pragmatic. The hallmark of early constitutional interpretation is pragmatism. And to the extent that they had these arguments over interpretive principles, these were proxy battles about their preferred policies in many cases. They were not just sort of pure questions of theory or philosophy or law. It was really about what kind of country do we want to live in?
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What kind of powers do we want this government to have, and how do we get there? So I think that there has been a-- we have barnacles on the hull now of theories of interpretation that can sometimes blind people to discussions of the pragmatic effects of their rulings in ways that I don't think that that founding generation would have recognized. [INTERPOSING VOICES] - Go ahead. - I was going to say it may be, though, that their theories are more binding on us than their pragmatic choices.
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I mean, no one would say that sort of, the Georgia legislature, to honor the wishes of the founders, should all be bribed by the Yazoo Land Company. What comes from the past that's still binding on us today are, to some extent, the legal rules that they thought were in place. And then they've made their arguments for one legal rule or another based on their pragmatism. But that's a-- that may be a different picture than pragmatism itself being an element of the legal rule--
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as in certain cases it was. - How much more useful might it be, though, if we were to have a fulsome sense of what were the politics surrounding that Yazoo-- the decision in Fletcher v. Peck? What were all of the disparate strands of considerations that went into that opinion? What were they considering? What policies and interest groups were they balancing? Then we would have more than just the-- can you guys hear me? - Yeah. Then we would have more than just sort
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of the naked phrasing, the way that they've dressed it up for the written opinion. We would also have the rationale. And we could change the nice phrasing to follow the rationale if we still agree with it. - So that's one thing-- I mean, we talked earlier a little bit about the sort of rhetoric versus practice question for modern judges. And I was wondering about that for Marshall. It seems like it's right. When it comes to sovereign immunity,
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Marshall said a bunch of stuff about sovereign immunity at the Virginia ratifying convention that would have been very comforting to the states, and then writes cases like Cohens versus Virginia, where he acts like he has no idea what he said at the Virginia ratifying convention. It doesn't mention it. And I take the point that's pragmatic. But he doesn't tell us that's what he's doing. He doesn't say, oh, sure, I said that to get the Constitution ratified, but now here we are.
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He doesn't say this is really a political battle. - Well, it may not have been, right? It may be just that like all great intellectuals he changed his mind over time as he had more experience and-- more experience and became a better lawyer. As he grew into a position of power, the experience of being in power changed his view about his responsibilities and about the responsibilities of government. So I think that his feeling of freedom to change his mind
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and not excuse himself is another one of those things that we could learn from him if we allowed ourselves to learn from all the context and not just the holdings of these early Supreme Court opinions. - So the more cynical version of that would be when he was trying to get people to give him power or to create a powerful federal government, he had a narrow view of federal power. And then once he got some, he, like many people in power, discovered that power made a lot of sense
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and that he should have lots of it. - Well, it couldn't just be that, because he was also just simply wrong about things. He called Chisholm v. Georgia wrong. And then in that convention speech he stood up and said, no one would ever hail a sovereign state into court. That's ridiculous. No one would stand for it. Again, recognize that this was not written down in the Constitution anywhere, it was just his view of what the background norms were, what the unwritten constitutional norms
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were that would definitely still apply in the new regime. He was just wrong about that. He might have been wrong about a lot of things. And the experience of being wrong certainly changes, at least, sort of sensible, intelligent, humble people. And I think it changed him. - So I would never speak against having additional context in order to understand what the law was at a historical time. But it's hard, because only some of the facts about that time generate law.
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There are lots of things that people do today that we-- even people in power do today that we don't think are sort of the best reflection of our legal rules. And whether Marshall was right or wrong when he spoke in the convention, I happen to think he was more correct in the convention than later on. But it's hard to know which direction to read all of the pragmatics. I mean, we should remember Lord Acton's dictum was not, power makes one a better lawyer.
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And there is a difficulty in reconstructing any period of the past, which I think is a really serious one in that people who want to do serious constitutional interpretation need to treat gingerly. It's very easy to get sort of out over our skis in terms of making our own confident pronouncements. And so as someone who identifies as an originalist, I would definitely say this is a problem endemic to the field. But on the other hand, there are some areas
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where it's possible to make better and worse arguments. People dispute something at the time. Hamilton and Madison go at it hammer and tongs. It's possible to say that one of them had the better argument. And the strength of the argument may or may not depend either on the pragmatics at the time, or the pragmatics now, or the degree to which we like the result. - Right. Well, that's certainly true. And I think the danger comes in-- some people, obviously not you, but some people pretending
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as though there were no arguments to be had about these issues-- acknowledging at the very least that there were ongoing discussions about most of the issues that may come up today that were at least relevant back then is an important sort of point of tension, I think, in any originalist opinion. Because then you have not only to say that you are following the path laid down by our forefathers, but also to say why you're following the better lit path,
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and not the side paths that others of our forefathers took. - So I'm going to hopefully open this up to questions shortly. So if anybody has any, please raise your little blue hand, or you can put it in the chat instead if you want. First, I'm going to put on a persona, or ask a question wearing my textualist hat. So after all of this, the Patrick Henrys of the world might get a little suspicious and might say, does the Constitution really need interpreting?
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Seems like all this interpreting is just getting us into trouble. It's just creating lots and lots of different possibilities for people to argue over, letting them pour in their politics. We just read it. It's a document. It's written down. You should just read it, and all of this kind of extra stuff that's not written there that only fancy lawyers know is just going to make it undemocratic and be a way that judges can surprise people and pull all their tricks. So I don't know.
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Do we really need all this stuff? Or can we just read the darn thing and stop with all the interpreting?
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- So I can jump in first if you like. So I think that part of the-- there's certainly an attraction to that. And Saul Cornell and others have demonstrated that there were a bunch of folks who thought that way. I think what's interesting is that they tended not to be lawyers, or tended not to be sort of super embedded in the legal community, in that if you treat this object as a legal instrument, it might have some legal rules of interpretation that are going to apply to it.
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If you treat it as sort of the voice of the people, sort of unmediated, straight from the people of the United States to the government, then there might be more of an argument for just reading it as the way that the man in the street would have read it. I think that that's kind of tough, though, because it was something that was commented on. It was something that was interpreted, that couldn't do without interpretation. And I think the better reading of the history
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is it was seen as something that was an entry in a legal environment, not just some sort of extraordinary lightning bolt from the people that required no careful study in order to get its meaning. - Yeah. I agree with that. I also-- I mean, it reminds me of an argument you might hear. I know that--
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I don't know. Tennyson was a poet, but I don't hold with all this English literature stuff. I'm just going to read the words, and what's there is there. That's what it means. If you have a document written by lawyers, there's going to be some lawyerly interpretation required before you can understand exactly what they meant. And that's true-- it's an unfortunate thing about a legal training, that it can make people forget how to write in plain prose, but it's not one that we can avoid.
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And I don't think that it's-- I don't think it is avoidable, especially for this generation of young, ambitious, intellectually fervent people who delighted in complex ideas, and to intentionally put legal terms of art into the work that they completed at the Constitutional Convention. So I think that some interpretation is required. Otherwise, to read it straight is to read it incompletely. And I'm not sure that that does anyone any favors, given how much it's intended to describe.
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- So but should we see that at least as a little bit of a defect? Again, they're intentionally putting in legal terms of art, then running out to the people to get this ratified as if that was important, when the people have no way of knowing what's hidden in all these terms of art. They sign off on the thing, being told by the lawyers, like, we wrote this for you-- promise it's all good. And then later the lawyers show up and say, oh, actually, you signed away your sovereignty or whatever.
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- And that was something that people at these conventions really worried about. There was this wonderful quote that you can find in the convention records, the ratification convention records from Massachusetts, where a farmer raises his hand and says, you fancy lawyers have made this thing. You're trying to get us to swallow it down like a pill. And then you'll swallow us up just like the whale swallowed-- - Jonah. - Jonah, right. And so this was an accusation that was brought.
38:55
And it was something that people were keenly aware of and worried about. I think that the reaction to that accusation was to try to rush conventions, to limit participation, to issue reassurances that may or may not have borne out, and the interpretations that those same people later put on the document and other things. It wasn't to decomplexify the document itself. - Yeah. I mean, certainly the experience of making a will or buying a house is one where you have a lawyer telling you
39:30
about what this instrument will do, and you really hope that they're right. And sometimes constitution-making is like that, too. It's very hard to talk about what it means for no attainder of treason to work corruption of blood without either speaking at very great length, or sometimes getting it wrong. I mean, if you try and translate the legal words into other words, just like with reading a book originally written in French, it's not necessarily going to capture it quite the right way.
39:58
So there are some real advantages when you want to do something legally to be able to rely on legalese. - All right. We have a question from Adam Griffin. I'm going to try to unmute.
40:15
- Hey, Professor Sachs, Professor Baude, and Professor Peterson. That was a really great conversation. I appreciate you doing this event today. My question was you had all talked about the Hamilton/Brutus debate, and Hamilton's view that judges were just kind of being judges and would have all the power of judges. So did the founders think federal judges had any more, less, different, or just the same power that a state court judge has? Was there any difference in the understanding
40:43
of their responsibilities and their judicial power?
40:51
- So I guess I can start. The question of what federal judges would be able to do is one of those questions that divided the Constitutional Convention and that they put off deciding until the meeting of the first Congress. It then created a really heated debate in Congress, as many states were worried about outposts of federal power within their states, worried about what they were before, worried that-- all the law that was needed was done perfectly fine by the state court.
41:26
So when you say that you're going to put a federal court in my jurisdiction, what exactly are you doing that for was sort of the sensibility of many of these skeptical comments. The first judiciary act created a federal judiciary of very circumscribed powers. But that's a different-- there are two different elements to your question. Could federal judges do the same things that state court judges did? No, because their power was defined by Congress,
41:55
and Congress defined that power very narrowly at first. There was no federal question jurisdiction until after the Civil War. The other question, though, is was a federal judge the same thing as a state judge, just with smaller jurisdiction? That, I think, is maybe a more interesting question. And I tend to think that the answer is yes, that they thought that the office of the judge and all of the implied powers of the judge, the ability to issue different writs, for example--
42:28
although Marbury v. Madison was going in the opposite direction here. But the power to issue different kinds of writs, the power to think and sound in equity as well as law, the responsibility to the bar that they inherited from their Anglo-- from English law heritage-- I do think that they thought they were creating that kind of office. - And another way of framing the question is, what exactly were state judges allowed to do? So it might well be that some state judges had broader
43:03
responsibilities that the federal judges didn't think in a regime with the Constitution's particular separation of powers they could exercise. So maybe [INAUDIBLE] case is really a sort of a dispute about that, about to what extent can federal judges play a role in executive administration in a way that maybe some state judges under their constitutional arrangements would be able to do. Certainly, there was a sense of sort of default rules, as opposed to what was specific to any one state.
43:34
But I think, also, nowadays when we think about state judges, a lot of it has to do with the common law. And there's this image of state judges as sort of crusading common law creators, and as that being sort of part of their remit. And I'm not honestly sure that that was, in fact, the vision of state judges around the time of the founding. I think that certainly the kind of free-wheelingness that we see in somebody like Mansfield or-- what was sort of-- raised some eyebrows at the time.
44:12
And whether that was seen as the proper role of a judge then might be different from what the answer is now. So it could well be that we shouldn't assume that state judges are quite as powerful as we now think them to be. - Yeah. I mean, my research indicates that some state judges, depending on the jurisdiction, were that powerful and more. And I think there's a wonderful book by Richard Ellis called The Jeffersonian Crisis, that chronicles a national debate over judicial power, where
44:52
the Jeffersonians, who are very skeptical of Mansfield and his style of the judicial role, declined to elect lawyers to the bench in some states; wanted to make sure that the law was accessible; were angrily opposed to anything looking like judicial review, or even the use of foreign law or foreign languages in judicial opinions. Whereas, other older jurisdictions, jurisdictions where judges were shielded from the interplay of national politics, like in New York.
45:33
Even North Carolina, Judge Ruffin, you see a very expansive style of early American judging. Chancellor Kent is a classic example of a very Mansfield-type American judge. - So one-- I mean, one obvious theme I'm hearing here are probably obvious to you two, but maybe not to all the students, is the Erie versus Tompkins-- the Erie Railroad rule that state courts can do all sorts of crazy common law crusading, and federal courts are supposed to be kind of potted plants
46:08
as far as the common law is concerned. That distinction wasn't necessarily the same there. And maybe we have a dispute about, are they all crusaders, or are they all potted plants, or something in between? But the idea that there was a sharp difference between two different kinds of judge is not the way it was back in the day, right? - Well, I think there were judges who agreed with Jefferson, sometimes self-consciously define themselves as Jeffersonian Republicans,
46:33
and intentionally limited themselves to a very narrow ambit of authority or discretion-- a narrow ambit of discretion. Other judges who thought of themselves more as Hamiltonian, who revered him as the father of federalist jurisprudence, and who revered Mansfield, and who saw their role as very broad, as this kind of statecraft. And so it's hard to generalize about this era, because this was a source of disagreement, along with the other things we've been talking about. - Yeah. All right.
47:14
So I have a question here in the chat also from a-- all right. It says, my question is, if the Constitution ought to be interpreted in light of equitable principles and pragmatism, what are the limiting principles, if any? Does originalist interpretation collapse into whatever shall be shall be, so long as it is presented in originalist terms?
47:39
- It should-- go ahead, Steve. - Oh, so my initial comment was going to be exactly how broad, equitable an interpretation went is not uncontested and wasn't uncontested at the founding. So I'm thinking about examples like you have a statute, and it refers to purchasers or something. Well, does it also extend to executors and administrators of the estates of purchasers, if the purchaser themselves is dead, and the executor is showing up in court.
48:11
And courts might say, yes, that's outside the language, but we're going to-- we will equitably read that in. Or Samuel Thorne has a great example of a really old statute that referred to the theft of horses. Does it apply to the theft of one horse? And to what extent-- the idea of departure from the strict words can mean a lot of different things. And I think that Sam Bray's recent article on the mischief rule is very helpful in articulating that the range of options, once you say, look,
48:47
we're going to try and figure out what the statute was doing, and why it was being put in, and as opposed to, we're going to figure out sort of what are all of the goals that the statute makers might have had, and how will we forward those goals to the maximum extent today-- these are not necessarily sort of one position. So I think that it is perfectly possible to say, look, courts all the time interpret First Amendment rights of speech and press to apply to email, not because it
49:17
constitutes a speech or a printing press, but because we understand what the right of free opinion might have referred to back then, and this is how it would most sensibly apply today, without saying that sort of it's open season. I think that there's a danger of inferring that sort of any attempt to apply the word sensibly results in a complete absence of constraint. - I also think it's dangerous for the discipline of history to tie very strongly what we do today to what we may or may not
49:56
find in the record. It may be that there were some out of control, wild and crazy early American judges, even important ones, that would have gone to the full extent of their intuition about what the law should do, regardless of what the text says. That doesn't necessarily mean that judges today should do that. In this, I, of course, depart from the originalist position. I'm not an originalist myself. But I think that to take from a discovery that early American judges would be bad judges today,
50:31
that we should be bad judges today, is to go too far. - So how should we decide what judges today should do? Or what should judges today do? - Are you asking me? - Yeah. - Well, I don't think it's an easy question. I don't think it's easy for any generation. I think it has a mix-- these classic values of fairness, openness, of, again, not surprising litigants with sudden revolutions in the law-- these kinds of principles that we can learn from in the past continue to be relevant.
51:15
But how exactly you apply them and what you emphasize in each individual case, I think, is probably-- you can't escape from a pragmatic decision about the justice due to the individuals before the court. And I know that's not as neat an answer as well, let's go to our pattern book. We've looked it up. Here we go. Here's the answer. But I really don't believe that there is a pat answer to these difficult questions. - And Steve, do you agree that if there are bad judges back
51:51
then, we should be bad judges now? - I don't think we should be bad judges, but I think our sense of what the judicial office is and what powers were conferred is very important. So if, for instance, the judge's office was one that had certain powers attached to it, and those powers have never been taken away, it would be hard to say why, in a given case, if the judiciary thinks that a certain result should follow, that it would be unable to do that.
52:20
I think it would make-- it would be extremely important knowing what the powers really were. Because obviously, there's a temptation in judges to exaggerate them. But I think that it's not very easy to say why. Just like if Congress had a certain power at the time of the founding and hasn't lost it, it's never been lawfully taken away, why they should be unable to exercise it today if they've got the votes for it? I think that we can have arguments about what the best model of judging would be,
52:52
but if we're trying to say that judges have legal reason not to do something that they would otherwise be empowered and inclined to do, the question is, OK, well, what makes that a legal reason, not just a sort of this is a bad way to do judging reason. And that works in both directions. It could be that judges were more hemmed in in certain ways than they think themselves today. And then we'd have to say, well, even if we think the current regime could be better
53:19
as a matter of political theory, what makes it the legal regime? - You know, I think that it's possible to think of these powers as having fallen into desuetude, that the question of exactly what powers each branch has might be vulnerable to the same kind of answer as other kinds of the-- is a common law question, which is, if you haven't used this part of your lawn for a long time, and you've let someone else build a fence on it, after a certain amount of time, you cannot just go bulldoze
53:54
that fence and not expect to pay for it. So you could imagine different, quote unquote, "legal ways" of answering this question that depart from the framers, the founders, the early national period's view of the way power is organized. - Right. But I take it-- so similarly, right, the fence is adverse possession from property law, and then there are different rules in different jurisdictions about when you get to bulldoze it. In some places it has to be 20 years, and in some places,
54:24
actually, if you give them a note saying the fence is OK, then you can do it for a long time. But so then, it's sort of law all the way down. - Well, that's true, but that just means you can't get away from interpretation. But while you can't get away from interpretation, there are legal principles on the other side. There are legal principles that say, well, an early American judge could decide that by necessary and proper, they meant necessary, proper, and convenient.
54:52
They did decide that, and that's what we're stuck with, because we've gone 200 years without knocking that fence down. Or you could decide to be a Jeffersonian about it and say, well, they don't list any federal crimes in the Constitution except treason and bribery. So we can't have a federal criminal code. Sorry. All of these cases have to be overturned. There are sort of legal answers on both sides of the question, that taken too far can become ridiculous.
55:24
- That's Jeffersonian argument is actually on my research agenda to try to write, but I need to be a little bit more drunk before it totally makes sense. All right. The time is ticking down on us, so I'm going to call it. This has been a delightfully rich conversation. So I'm really glad you guys could join us. And I hope everybody learned something from it. - Thank you so much for having me. - Thanks for the invitation.
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