Originalism and the Law of the Past

Law and History Review, Vol. 37, No. 3 (2019), pp. 809-820

Duke Law School Public Law & Legal Theory Series No. 2019-46

12 Pages Posted: 8 Jul 2019 Last revised: 12 Aug 2019

See all articles by William Baude

William Baude

University of Chicago - Law School

Stephen E. Sachs

Duke University School of Law

Date Written: June 6, 2019

Abstract

Originalism has long been criticized for its “law office history” and other historical sins. But a recent “positive turn” in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law — which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders’ law, unless lawfully changed.

This theory has three important implications for the role of history in law. First, whether and how past law matters today is a question of current law, not of history. Second, applying that current law may often require deference to historical expertise, but for a more limited inquiry: one that looks specifically at legal doctrines and instruments, interprets those instruments in artificial ways, and makes use of evidentiary principles and default rules when the history is obscure. Third, ordinary legal reasoning already involves the application of old law to new facts, an inquiry that might other-wise seem daunting or anachronistic. Applying yesterday’s “no vehicles in the park” ordinance is no less fraught — and no more so — than applying Founding-era legal doctrines.

Note: (c) The American Society for Legal History, Inc. 2019. This is a draft version; the full article appears in Law and History Review, published by Cambridge University Press. https://doi.org/10.1017/S0738248019000452.

Keywords: originalism, legal history, positive turn, original law, vehicles in the park

JEL Classification: K1, K10, K19

Suggested Citation

Baude, William and Sachs, Stephen E., Originalism and the Law of the Past (June 6, 2019). Law and History Review, Vol. 37, No. 3 (2019), pp. 809-820; Duke Law School Public Law & Legal Theory Series No. 2019-46. Available at SSRN: https://ssrn.com/abstract=3400463

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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