Grounding Originalism

38 Pages Posted: 5 Feb 2019 Last revised: 23 Apr 2019

See all articles by William Baude

William Baude

University of Chicago - Law School

Stephen E. Sachs

Duke University School of Law

Date Written: January 28, 2019

Abstract

How should we interpret the Constitution? The "positive turn" in legal scholarship treats constitutional interpretation, like the interpretation of statutes or contracts, as governed by legal rules grounded in actual practice. In our legal system, that practice requires a certain form of originalism: our system's official story is that we follow the law of the Founding, plus all lawful changes made since.

Or so we've argued. Yet this answer produces its own set of questions. How can practice solve our problems, when there are so many theories of law, each giving practice a different role? Why look to an official story, when on-the-ground practice may be confused or divided--or may even make the story ring false? And why take originalism as the official story, when so many scholars and judges seem to reject it?

This Essay offers a response to each. To the extent that legal systems are features of particular societies, a useful theory will have to pay attention to actual social practice, including the aspects of legal practice we describe. This positive focus really can resolve a great many contentious legal disputes, as shared legal premises lead to conclusions that might surprise us or that ultimately establish one side in a dispute as correct. The most serious challenge to our view is the empirical one: whether originalism is or isn't the official story of our law. Stripped of their jurisprudential confusion, though, the best competing accounts of our law seem to have far less supporting evidence than our own account. Focusing on social practice as it stands today turns out to direct our attention to the Founders and to the changes over time that their law has recognized.

Keywords: originalism, constitutional theory, constitutional interpretation, legal theory, jurisprudence, positivism, H.L.A. Hart

JEL Classification: K00, K1, K10, K19, K40

Suggested Citation

Baude, William and Sachs, Stephen E., Grounding Originalism (January 28, 2019). Northwestern University Law Review, vol. 113, p. 1455; Duke Law School Public Law & Legal Theory Series No. 2019-22. Available at SSRN: https://ssrn.com/abstract=3324308

William Baude

University of Chicago - Law School ( email )

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

Stephen E. Sachs (Contact Author)

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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