The (Ir)relevance of Positivist Arguments for Originalism
39 Pages Posted: 3 Aug 2019 Last revised: 12 Aug 2019
Date Written: July 30, 2019
In a series of recent Articles William Baude and Stephen Sachs argue that as a matter of positive law — that is, as a matter of our convergent social practices — a form of originalism is in fact our law. Having provided an account of the content of the law they presume to also have provided an account of sound adjudication. But I argue that this inference requires showing that an account of the content of the law is explanatorily prior to an account of sound adjudication, and I argue that we need not accept this assumption. Indeed, if the positivist view endorsed Baude and Sachs is true, this assumption will turn out to be false. I then provide an account of how the contingent social practices that constitute positive law bear on the further question of how a judge ought to decide a case. And I argue that properly understood the normative relevance of these social practices cannot ground anything like a general duty to apply positive law. Thus, I argue that Baude and Sachs’s positivist arguments have no bearing on the concerns that animate most normative constitutional theorizing — a concern to provide a theory of sound adjudication. Authors who have been concerned about the normative merits of different constitutional theories can safely ignore the positive turn.
Keywords: Constitutional law, Constitutional Theory, Legal Reasoning, Contextualism, Originalism, Anti-Theory
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