The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
My frequent co-author (and now co-blogger) Steve Sachs and I have a new article out in the Northwestern Law Review, in a symposium issue devoted to "Originalism 3.0." Our contribution, "Grounding Originalism," tries to provide philosophical grounding for our approach to originalism, one which emphasizes that originalism is a theory of law, under which our law is the Founders' law, plus all lawful changes enacted since then.
The piece responds in part to criticisms raised by Richard Primus, Mark Greenberg, Mikołaj Barczentewicz, and Charles Barzun, among others (and Eric Segall is publishing a response here). Here is the abstract of our piece:
How should we interpret the Constitution? The "positive turn" in legal scholarship treats constitutional interpretation, like the interpretation of statutes or contracts, as governed by legal rules grounded in actual practice. In our legal system, that practice requires a certain form of originalism: our system's official story is that we follow the law of the Founding, plus all lawful changes made since.
Or so we've argued. Yet this answer produces its own set of questions. How can practice solve our problems, when there are so many theories of law, each giving practice a different role? Why look to an official story, when on-the-ground practice may be confused or divided—or may even make the story ring false? And why take originalism as the official story, when so many scholars and judges seem to reject it?
This Essay offers a response to each. To the extent that legal systems are features of particular societies, a useful theory will have to pay attention to actual social practice, including the aspects of legal practice we describe. This positive focus really can resolve a great many contentious legal disputes, as shared legal premises lead to conclusions that might surprise us or that ultimately establish one side in a dispute as correct. The most serious challenge to our view is the empirical one: whether originalism is or isn't the official story of our law. Stripped of their jurisprudential confusion, though, the best competing accounts of our law seem to have far less supporting evidence than our own account. Focusing on social practice as it stands today turns out to direct our attention to the Founders and to the changes over time that their law has recognized.
Because this piece is the latest in a line of five or six pieces that Steve and/or I have written advancing this theory, it doesn't provide all of the arguments or evidence for our view. But we do provide (p. 1491) what I hope is a helpful summary of how past and present law relate:
- As a theoretical matter, positivists like us figure out today's law based on today's social facts.
- As a contingent, empirical matter, today's social facts happen to incorporate the Founders' law by reference.
- As a historical, legal matter, the Founders' law allowed for various kinds of changes, including both formal enactments and the incorporation by reference of various kinds of customary law
As well as (p. 1477-78) another hopefully helpful summary of the evidence we've amassed in previous pieces that we think supports our view:
- We treat the Constitution as a legal text, originally enacted in the late eighteenth century.
- This constitutional text regulates the selection of legal officials, even when such regulations are unpopular or contrary to tradition.
- Actors in our legal system don't acknowledge, and indeed reject, any official legal breaks or discontinuities from the Founding.
- We rely on technical domesticating doctrines, themselves rooted in preexisting law, to blunt the practical force of novel originalist arguments.
- Original meaning sometimes explicitly prevails over policy arguments in constitutional adjudication, but the reverse doesn't seem to be true.
- Our treatment of precedent makes sense if original sources determine the Constitution's content but not if precedent does.
- More generally, there are no clear repudiations of originalism as our law in the current canon of Supreme Court cases, even in situations where the Justices must have been sorely tempted.
As always, if this provokes further productive criticisms or a counter-argument about theory better describes our law, we'd love to see it! Meanwhile, Steve and I are at work on two more pieces aimed at more specialist literatures, one in history and one in philosophy, which I'll look forward to sharing here later this year.