Many people who argue against originalism do so on the basis of legal positivism.  The basic argument is that the law in a nation’s legal system is based on the rule of recognition – a rule that officials in the country accept as determining what the law is – and that the rule of recognition precludes originalism.  Under one version of this argument, the rule of recognition accepts as fully legitimate certain types of constitutional arguments.  While some of those arguments are consistent with originalism, such as text or intent arguments, others are not, such as constitutional theory or value arguments.  Because originalism does not allow these latter arguments, but the rule of recognition requires them, originalism is not the law.  While some originalists, such as Will Baude and Stephen Sachs, argue that the rule of recognition is actually consistent with a kind of originalism, the nonoriginalist positivists don’t agree.

I’m skeptical that legal positivism is actually a useful way of determining what the law is, in part because of continuing disagreements about what the rule of recognition is, but let’s put that concern to the side.  These nonoriginalist positivists tend to argue for a liberal version of constitutional law.  They contend that the various types of arguments support their liberal vision.  For two examples, see Dick Fallon’s Constructivist Coherence Theory or Philip Bobbit’s Constitutional Fate.

But as I read these nonoriginalist positivists, the arguments that they include within constitutional law are very open ended.  These open ended arguments may allow a liberal to reach liberal conclusions, but they do not prevent people with other views from reaching opposite conclusions.

To illustrate this point, I will argue in this post and the next that a libertarian judge could reach libertarian solutions using the type of arguments that these liberal positivists use to define constitutional law.  If both predominantly liberal and predominantly libertarian results are possible under the law as defined by these positivists, then the law is not very constraining.  Put differently, we should not take too seriously the claim that the law requires any particular result, since it seems compatable with a broad range of decisions.   

Here I will rely on Fallon’s Constructivist Coherence Theory.  While Fallon’s theory was written based on Dworkinian approach, it is easily adapted to a positivist approach (and Fallon now has become more positivist).

Fallon argues that constitutional law consists of five types of arguments – arguments based on text, intent, constitutional theory, precedent, and values.  Each of these types of arguments allows the interpreter a significant degree of discretion (as I will show in my next post).

One question is how an interpreter should resolve disagreements between these types of arguments – when one type of argument supports one result, but another type supports a different result.  Fallon proposes to resolve the disagreements in two ways.  First, he claims that judges attempt to make the different arguments lead to the same results, in some cases changing their mind about an argument in order to do so.  Second, if such revisions are not possible, he proposes a loose hierarchy of arguments, with text ranking highest, followed by intent, theory, precedent and values.