20 Green Bag 2d 103 (2016)
6 Pages Posted: 17 Oct 2016 Last revised: 13 Jan 2017
Date Written: November 28, 2016
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: 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