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Forthcoming 2019: Constructing Originalism & Grounding Originalism - Baude, Sachs, and Barzun


Forthcoming 2019

Forthcoming 2019 is a section from the Everyday Evidence Legal Blog that highlights recent papers from attorneys and professors from across the legal spectrum. These recent and soon-to-be publications offer readers a chance to see a wide range of issues from different legal fields.


Today’s Forthcoming 2019 features two articles:

Northwestern Law Review

William Baude & Stephen Sachs


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.


Virginia Law Review

Charles L. Barzun


In my initial critique of the novel brand of originalism Professors Baude and Sachs had advanced, both separately and together, my objection was not so much that their theory was wrong but rather that it depended on conceptual claims and normative commitments they refused to acknowledge.[7] Their response and further elaboration of their theory in Grounding only partially remedies those defects. They now explicitly align themselves with H.L.A. Hart’s theory of law, which usefully focuses the debate.[8] But they still fail to reckon with the difficulties Hart’s model of law poses for their approach. In fact, their somewhat creative interpretation of Hart further confirms my initial observation that their true jurisprudential ally is Ronald Dworkin.[9] It also points to another feature of the “deep structure” of law that Baude and Sachs mostly ignore.[10]

Below I expand upon and clarify these claims. Part II briefly recapitulates the debate between Baude and Sachs and me. The next two Parts each address one of the two core issues that divide us. The first issue is about American judicial practice, and the question is, how originalist (in their distinctive sense of that term) is our practice? The second issue is about the relationship between judicial practice and “law,” according to H.L.A. Hart’s theory of law. There the question is, can originalism still be our law even if no judges recognize that fact? Part V concludes by suggesting that Baude and Sachs’s use of Hart’s theory reveals the way in which both legal practice and theory is interpretive in a technical sense of that term I will explain.


Click here for Baude and Sachs article.

Click here for Barzun article.

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