Baude NYT Opinion Piece on Originalism and My Questions (7/10/20; 7/13/20)

I alert readers to William Baude's excellent opinion piece in NYT yesterday:  Conservatives, Don’t Give Up on Your Principles or the Supreme Court (NYT 7/9/20), here.  For persons interested in constitutional interpretation (and the subset of statutory interpretation, both being interpretations of law), I recommend the article.  Baude, here, is a professor at the University of Chicago Law School.  I have cited Baude frequently on this blog.  See here.

I was going to leave a comment on the NYT page addressed to Professor Baude (although not expecting him to respond to a comment on the News page but hoping to draw responses from others).  But, alas, I could not figure out how to leave a comment.  So, I will post here my intended comment to the opinion piece in the hope that any of the readers here might want to comment either on this blog page or by email to me at jack@tjtaxlaw.com.

The comment is:

I address this question to Professor Baude (who is probably too busy to respond) but encourage anyone else having ideas on my comments to weigh in. 

Professor Baude, 

I read your NYT op-ed today with great interest, since I became interested in statutory (and, by extension,  constitutional) interpretation incident to teaching tax procedure at the University of Houston law school.  I have read a lot of your work and find it generally excellent, even when I do not necessarily agree with it.  Always worth considering.  So thank you for your continuing offerings on this subject. 

You say good things about originalism.  I am curious about what brand of originalism you find most attractive.  For constitutional interpretation, my sense is that most originalists claim that they search for the "original public meaning." Original public meaning is not what the drafters meant by the text drafted and approved but what some mythical contemporaneous public person not involved in the legislative process would have interpreted the words to mean.  Jed Rakove tongue in cheek says that might be Joe the Ploughman.

Yet, when they search for meaning of the constitutional text, original public meaning advocates refer to Framers and often the Federalist Papers.  Two of the authors of the Federalist Papers were prominent members of the Constitutional Convention.  Madison participated in drafting and otherwise knew the intent of the convention members in the language they chose.  He was the contemporaneous chronicler of the convention consideration and debates over the language crafted into the final document.  To the extent the Federalist Papers has prominence in interpretation, it would seem to be because the Federalist Papers' authors reflected either the drafters' intent or their policy spins on the drafters' intent for the language they used.  The Federalist Papers' authors do not reflect the "original public meaning" in the sense of the public's meaning, although their analyses could have influenced the public's meaning of the text.  (Note that, in the sense I read the Federalist Papers, it is more like legislative history, usually drafted by the staff (or in the tax area, drafted or counseled by the JTC) who were heavily involved the drafting and enactment process.)

I end with this question.  Are you a drafter's intent originalist or a public meaning originalist or in between?  If a public meaning originalist, what public meaning do you mean?  Is it Joe the Ploughman, the dictionary compilers, Google searches of words at the time (subsequently incorporated in Googles' ubiquitous database) or some other referent?

Thank you.

 Jack Townsend

 JAT Comment (posted 7/10/20 3:10 pm):

1. Here is my solution to how to reconstruct the original public meaning at least for constitutional or statutory text enacted after we start this program:  (i) every year, we harvest, say, 100 brains at random from people who are sufficiently near death that they are practically dead but the brain is still functioning, (ii) we preserve the brains in their date of death state of knowledge (no knowledge updating), (iii) we find some way to communicate with those brains and the brains to communicate with us; (iv) each time an interpretive issue arises for constitutional or statutory text enacted during a particular year, we poll the brains for that year as to what meaning they attach to the statutory text; and (v) the original public meaning is their consensus.  This is just a thought experiment and tongue in cheek.  I guess we will just have to stick with the old, probably dead and anonymous, lexicographers as our guides into the mystical realm of original public meaning.

JAT Comment posted 7/13/20 4:45 pm:

2. Professor Baude first came to my particular attention with his blog posting:  Reminder: The United States Code is not the law (The Volokh Conspiracy 5/15/17), here.  In that offering, Professor Baude explains the difference between statutes adopted as a Code (e.g., Internal Revenue Code of 1986 which is really a statute) and statutes codified into the U.S. Code.  In the latter instance, the Code is not the law but a compilation of the law; the underlying compiled statutes are the law.  Professor Baude's offering inspired me to add a section to my Federal Tax Procedure Book on the topic.  That discussion is in the 2019 Practitioner Edition on pp. 23-24, here (with citations to the Baude article and other authority in the footnotes).  I was and am impressed with his work.