62 Pages Posted: 13 Jun 2016 Last revised: 19 Nov 2016
Date Written: November 18, 2016
If our law requires originalism in constitutional interpretation, then that would be a good reason to be an originalist. This insight animates what many have begun to call the “positive turn” in originalism. Defenses of originalism in this vein are “positive” in that they are based on the status of the Constitution, and constitutional law, as positive law. This approach shifts focus away from abstract conceptual or normative arguments about interpretation and focuses instead on how we actually understand and apply the Constitution as law. On these grounds, originalism rests on a factual claim about the content of our law: that we regard the framers’ law, and any other further lawful changes, as our law today. If we do not, originalism is not the law and perhaps should be abandoned in favor of what is.
The positive turn points in the right direction but, we argue, does not go far enough. To be sound and complete, a positive-law argument for constitutional originalism must also have firm conceptual and normative grounds. Without conceptual and normative anchors, positive-law originalism is subject to drift in a jurisprudential sea in which “whatever is, is law.” An appropriately anchored theory depends on a defensible concept of the Constitution as positive law to justify a normative conclusion about how faithful participants in our legal system ought to interpret it in developing constitutional law. This Article explains how the classical natural law tradition of legal thought, which is also the framers’ tradition, supplies a solid jurisprudential foundation for constitutional originalism in our law today.
Keywords: Constitutional interpretation, originalism, positivism, natural law
JEL Classification: K10
Suggested Citation: Suggested Citation
Pojanowski, Jeffrey A. and Walsh, Kevin C., Enduring Originalism (November 18, 2016). Georgetown Law Journal, Vol. 105, p. 97, 2016. Available at SSRN: https://ssrn.com/abstract=2793875
By Richard Kay