A Positivist, Baseball-Centric Critique of Originalism

12 Pages Posted: 29 Jun 2020

See all articles by William Blake

William Blake

University of Maryland, Baltimore County (UMBC) - Department of Political Science

Date Written: June 4, 2020

Abstract

Some scholars have argued that respect for the Constitution compels judges to adopt originalism. This paper evaluates the claim of “compelled originalism” by comparing the language of the baseball rulebook to that of the U.S. and other constitutions. First, I describe how different rules of our national pastime align with originalism, while others invite umpires to use a living Constitution approach. I then leverage H.LA. Hart’s philosophy of legal positivism to evaluate baseball and constitutional rules. Hart claims public officials must accept the most fundamental rules of their legal system, which would include any guidance about how to interpret the Constitution.

Because compelled originalism is rooted in respect for the Constitution’s legitimacy and supremacy, one would assume the text would instruct judges to be originalists. Of course, the Constitution says no such thing. By contrast, the baseball rulebook sometimes provides specific instructions to umpires about how to adjudicate certain rule violations. I conclude by demonstrating how originalists have managed to turn the debate over constitutional legitimacy on its head. If the goal of originalism is to prevent judges from reading provisions into the Constitution, originalists must take seriously that no requirement to use original public meaning exists in the constitutional text.

Keywords: originalism, positivism, rule of adjudication, baseball

Suggested Citation

Blake, William, A Positivist, Baseball-Centric Critique of Originalism (June 4, 2020). Available at SSRN: https://ssrn.com/abstract=3619166 or http://dx.doi.org/10.2139/ssrn.3619166

William Blake (Contact Author)

University of Maryland, Baltimore County (UMBC) - Department of Political Science ( email )

1000 Hilltop Circle
Baltimore, MD 21250
United States

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