Keeping Our Distinctions Straight: A Response to “Originalism: Standard and Procedure”

Harvard Law Review Forum (Forthcoming 2022).

U of Penn Law School, Public Law Research Paper No. 22-04

17 Pages Posted: 10 Jan 2022

See all articles by Mitchell N. Berman

Mitchell N. Berman

University of Pennsylvania Carey Law School

Date Written: August 9, 2021

Abstract

For half a century, moral philosophers have distinguished between a “standard” that makes acts right and a “decision procedure” by which agents can determine whether any given contemplated act is right, which is to say whether it satisfies the standard. In “Originalism: Standard and Procedure,” Stephen Sachs argues that the same distinction applies to the constitutional domain and that clear grasp of the difference strengthens the case for originalism because theorists who emphasize the infirmities of originalism as a decision procedure frequently but mistakenly infer that those flaws also cast doubt on originalism as a standard. This invited response agrees that the basic distinction Sachs highlights is important, but argues that it’s already well understood in the constitutional theory literature under different labels, such as the familiar distinction between theories of legal content and of adjudication, and the less familiar distinction between “constitutive” and “prescriptive” theories of constitutional interpretation. It argues further that, nomenclature aside, the distinction does not lend originalism the support that Sachs claims for it because we remain without good reason to believe that originalism is our constitutional standard.

Keywords: Law & philosophy, philosophy of law, constitutional law, constitutional theory, jurisprudence, standards and decision procedures, Stephen E. Sachs, decision rules, metaphysical grounding, original-law originalism

Suggested Citation

Berman, Mitchell N., Keeping Our Distinctions Straight: A Response to “Originalism: Standard and Procedure” (August 9, 2021). Harvard Law Review Forum (Forthcoming 2022)., U of Penn Law School, Public Law Research Paper No. 22-04, Available at SSRN: https://ssrn.com/abstract=4003571

Mitchell N. Berman (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

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