Once and Future Originalism

A sign of originalism’s strength is the annual conference on the subject now held at San Diego Law School under the direction of Mike Rappaport.  It attracts prominent originalists and, as importantly, ever more critics of originalism who now take this enterprise seriously.  One of those critics, Richard Primus, has blogged about the conference in a friendly manner.  Nevertheless, he is not correct in his thesis that many, if not most, originalist theorists  believe that originalism has never been tried before.  I have never heard such a bald assertion from my colleagues.

And that proposition would be obviously wrong about the course of constitutional law. James Madison, widely regarded as the father of the Constitution, supported what is now called originalism:

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified in the nation. In that sense alone, it is the legitimate Constitution. And if that not be the guide in expounding it, there can be no security for a consistent and stable exercise of its power.

A historian of constitutional law who is not himself originalist concurs that until the Progressive Era, nearly everyone appealed to originalist reasoning even if they at times disagreed to its outcome.

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Is Originalism the Law?: The Constitution in Exile Problem

In the past, I have discussed the justification for originalism that the original meaning of the Constitution is the law. Under this positivist view, originalism is the law and and therefore one can make a normative argument that the original meaning should be followed. I have expressed skepticism about this argument: my tentative position is that the law allows, within significant limits, both originalism and nonoriginalism.

Steve Sachs has a new paper out that attempts to develop the positivist originalist argument further. In The “Constitution in Exile” as a Problem for Legal Theory, Steve in part responds to my post questioning this positivist argument:

On its face, the jurisprudential objection is quite plausible. It has even persuaded some originalists. Michael Rappaport, for example, straightforwardly defends originalism as a “desirable” reform program, rather than as a consequence of “following the law.” He notes that “people are in jail in the U.S.—lots of them—for violating laws that are inconsistent with the Constitution’s original meaning,” and that “nonoriginalist Supreme Court decisions are enforced without a second thought by most people all the time.” In this context, “[w]hat does it mean to say that the Constitution’s original meaning is the law?” More generally, “[w]hat does it mean for something to be the law, if the legal system is not enforcing it?”

Steve’s paper is excellent and I strongly recommend it. The paper contains all types of interesting insights from which I learned quite a bit. But in the end the paper does not really move me any closer to the view that the original meaning is the law under positivism.

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