The Volokh Conspiracy

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"Originalism and the Positive Turn": my response to Steven Smith


My essay, Originalism and the Positive Turn, is now online at the Liberty Law Forum. It responds to Steven Smith's essay (my previous post on Smith is here; my post on Mike Rappaport's response is here).

From the introduction to my essay:

The new originalism has long faced two different kinds of critics: the external and the internal. The external critics are not originalists at all. Some of them simply reject all forms of originalism, but many instead argue that the new originalism is inferior to the old one. The old originalism, they say, at least had the courage of its convictions. "At least we were arguing about something!" these critics might cry. "Now, I don't know what the debate is about anymore!"

Originalists themselves often mistrust these external critics. After all, those who are unsympathetic to a philosophy often have bad judgment about what are the best parts of that philosophy. Other external critics may not have kept with originalism's development.

New originalism also has internal critics. The internal critic continues to adhere to, or at least sympathize with, the "old" originalism. This critic's worry is that an originalism that yearns to be too flexible or too popular may lose whatever it was that made originalism good in the first place.

In recent years, Steven Smith has become the most important internal critic, as his Liberty Law Forum essay continues to show. Smith argues that it is time for originalists to do away with "original meaning." Meaning is too manipulable, he says, too easily detached from the actual goals of the original enactors. We should instead look for what he calls the "original decision."

I disagree, for reasons that are simultaneously narrow and deep. On its own terms, I think Smith's proposal should largely collapse back into original meaning. But Smith's proposal also reveals a foundational disagreement about originalism's goals, and I think Smith is on the wrong side of it.

And one of my favorite paragraphs:

This emphasis on originalism's legal status-which I and others have proposed-is the positive turn. What does it accomplish? The positive turn answers the dead-hand argument famously leveled against originalism: The earth belongs to the living, so why should constitutional law be controlled by the decisions of the dead? The Constitution continues to control precisely because we the living continue to treat it as law and use the legal institutions it makes, and we do so in official continuity with the document's past. The same thing is true of the other parts of our law-old statutes, old precedents, and old deeds all continue to have legal force today unless other valid legal rules upset them. So the decisions of the dead still govern, but only because we the living, for reasons of our own, receive them as law.

You can read the whole thing here.