Originalism's Bite

6 Pages Posted: 17 Oct 2016 Last revised: 13 Jan 2017

William Baude

University of Chicago - Law School

Stephen E. Sachs

Duke University School of Law

Date Written: November 28, 2016

Abstract

Is originalism toothless? Richard Posner seems to think so. He writes that repeated theorizing by "intelligent originalists," one of us happily included, has rendered the theory "incoherent" and capable of supporting almost any result. We appreciate the attention, but we fear we've been misunderstood. Our view is that originalism permits arguments from precedent, changed circumstances, or whatever you like, but only to the extent that they lawfully derive from the law of the founding. This kind of originalism, surprisingly common in American legal practice, is catholic in theory but exacting in application. It might look tame, but it has bite.

Keywords: Originalism, Falsifiability, Abstraction, Positivist, Positivism, Posner

JEL Classification: K40, K39, K41

Suggested Citation

Baude, William and Sachs, Stephen E., Originalism's Bite (November 28, 2016). 20 Green Bag 2d 103 (2016); Duke Law School Public Law & Legal Theory Series No. 2017-1. Available at SSRN: https://ssrn.com/abstract=2851986

William Baude (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Stephen E. Sachs

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-8542 (Phone)

HOME PAGE: http://law.duke.edu/fac/sachs

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