Constructing Originalism or: Why Professors Baude and Sachs Should Learn to Stop Worrying and Love Ronald Dworkin

21 Pages Posted: 15 Aug 2019 Last revised: 2 Oct 2019

See all articles by Charles L. Barzun

Charles L. Barzun

University of Virginia School of Law

Date Written: August 14, 2019

Abstract

This Essay responds to Professors William Baude and Stephen Sachs’s recent article, Grounding Originalism, in which they offer replies to various criticisms I and others have made of the so-called “positive turn” in constitutional originalism. I argue that their replies still fail to address the core underlying problems plaguing their attempt to “ground” originalism in the legal positivism of H.L.A. Hart. In fact, their somewhat creative interpretation of Hart’s theory demonstrates even more clearly than did their earlier work that their true jurisprudential ally is the anti-positivist Ronald Dworkin

Keywords: originalism, Hart, Dworkin, rule of recognition, official story, Nazi law

Suggested Citation

Barzun, Charles L., Constructing Originalism or: Why Professors Baude and Sachs Should Learn to Stop Worrying and Love Ronald Dworkin (August 14, 2019). Virginia Public Law and Legal Theory Research Paper No. 2019-48. Available at SSRN: https://ssrn.com/abstract=3437430

Charles L. Barzun (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-924-6454 (Phone)

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