...to Mike Rappaport, Will Baude and Steve Sachs, at Liberty Law Forum: Decisional Originalism: A Response to Critics. From the introduction:
I’m sincerely honored that Mike, Will, and Steve (whose expertise in these matters, both individually and collectively, greatly exceeds my own) would make the effort to comment on my essay. The comments advance powerful objections to “decisional originalism,” as I’ve reluctantly called it. Even so, I’m not persuaded– not yet anyway– to abandon the idea. I’ll try briefly to explain why (without purporting, in a short rejoinder, to answer all of the many questions raised).
And here are some thoughts on the "positive turn" in originlism, one of the most important new developments in originalism scholarship:
The “fundamental justification for originalism,” [Will Baude] suggests, is not the desire to respect authority and promote rationality in our law; rather, “[o]riginalism is important because it’s part — and maybe more than just part — of our current legal practice.” It’s part of “our law.” Will calls this view “the positive turn” in originalism.
Now on one level I entirely agree with Will. Originalist inquiries and arguments are part of our legal practice; if they weren’t, we wouldn’t have the same interest in them. (Though non-originalist decisions are also part of our practice.) The “positive turn” conveys an insight that is important in ways we can’t explore here. But does this insight provide any justification for originalism? I don’t see how.
Suppose you ask me why I make important decisions by flipping coins, or consulting a horoscope, or studying the Bible. And suppose I respond, “I do it because that’s my practice.” My response may be true enough, but it doesn’t answer your question. You already know this is part of my practice– that’s why you’re asking about it– but you’re wondering if there is some justification for this particular practice which, as your question suggests, you find puzzling or problematic. And, without more, saying “It’s my practice” (or, basically, “I do it because that’s what I do”) fails to supply any such justification. The same is true, I think, for collective practices, including legal practices – including originalism.
In this respect, I don’t understand how “the positive turn” provides help with the familiar dead-hand objection, as Will thinks. Suppose I make all major decisions by speculating about and then doing what my great-grandmother Matilda would have advised, and you suggest that I’m being irrationally servile. I should think for myself, you say (parroting Kant) – make my own decisions. Suppose I respond, “I am making my own decisions. Granny doesn’t force me to do anything; I follow her advice only because I choose to do that.” My response will be true: ancestors (whether my great-grandmother or “the Framers”) can’t step out of the grave and compel us to do anything. But that observation does nothing to justify a practice of choosing to defer to them.