In the past I have written a couple of posts about the argument for originalism based on the idea that the original meaning of the Constitution is the law. In this and my next post, I will discuss this issue in the context of H.L.A. Hart’s theory of the law.
The simple version of the argument that the original meaning of the Constitution is the law is problematic. In the United States, people are imprisoned every day based on laws that violate the original meaning of the Constitution. Thus, if the original meaning of the Constitution is the law, one might ask in what sense it is the law, since that “law” is not being enforced.
Perhaps the leading way to understand what the law is, in the Anglo American legal world at least, is to consider H.L.A. Hart’s The Concept of Law. Hart believes that the rule of recognition sets forth the criteria of legal validity for creating, changing, and adjudicating law. Thus, if originalism is the law, then that would be the case in virtue of it being required by the rule of recognition.
Where then do we look for the rule of recognition? Hart believes that the rule of recognition represents a convention among officials to regard its criteria as standards that govern their behavior as officials. Thus, the rule of recognition would reflect the views and behavior of judges and other officials as to what the law is.
If originalism were the law, then according to Hart’s theory, it would be required by the rule of recognition. Judges and other officials would believe that only the original meaning was the law.
The problem, of course, is that most judges (and other officials) do not regard only the original meaning as the law. In fact, the dominant view, at least until recently and probably still the majority view today, is that nonoriginalism is a perfectly acceptable way of adjudicating cases. Based on the prevalence of nonoriginalism, one might even argue that originalism is illegal.
In this first post, I will explore the idea of the rule of recognition, with particular reference to whether it forbids originalism. After concluding that the rule of recognition allows originalism, in my next post, I will come back and discuss the possibility that the rule of recognition requires originalism and therefore that originalism might be the law. Continue Reading →