60 Pages Posted: 13 Oct 2015 Last revised: 6 Jan 2016
Date Written: December 23, 2015
This Essay provides a new framework for criticizing originalism or its alternatives --- the framework of positive law.
Existing debates are either conceptual or normative: They focus either on the nature of interpretation and authority, or on originalism’s ability to serve other values, like predictability, democracy, or general welfare. Both sets of debates are stalled. Instead, we ought to ask: Is originalism our law? If not, what is? Answering this question can reorient the debates and allow both sides to move forward.
If we apply this positivist framework, there is a surprisingly strong case that our current constitutional law is originalism. First, I argue that originalism can and should be understood inclusively. That is, it permits doctrine like precedent if those doctrines can be justified on originalist grounds. Second, I argue that our current constitutional practices demonstrate a commitment to inclusive originalism. In Supreme Court cases where originalism conflicts with other methods of interpretation, the Court picks originalism. By contrast, none of the Court’s putatively anti-originalist cases in fact repudiate originalist reasoning. These judicial practices are reinforced by a broader convention of treating the constitutional text as law and its origin as the framing. So while constitutional practice might seem, on the surface, to be a pluralism of competing theories, its deep structure is in fact a nuanced form of originalism.
Third, I suggest that originalism’s positive legal status has important normative implications for today’s judges. Judges promise to follow the law, and their judicial authority is premised on the assumption that they do. So if an inclusive version of originalism is the law, judges ought not be the ones to change it. Courts ought to privilege our current legal conventions over academic theories that are anti-originalist and against narrower forms of originalism as well.
Keywords: originalism, law, inclusive, positivism, positivist, originalist, pluralist, illuminati
Suggested Citation: Suggested Citation
Baude, William, Is Originalism Our Law? (December 23, 2015). 115 Columbia Law Review 2349 (2015); U of Chicago, Public Law Working Paper No. 551. Available at SSRN: https://ssrn.com/abstract=2672631