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

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