Richard Primus: Thoughts on William Baude's 'Is Originalism Our Law?'
Richard Primus (University of Michigan Law School) has posted Is Theocracy Our Politics? Thoughts on William Baude's 'Is Originalism Our Law?' (Columbia Law Review Sidebar, 2016, forthcoming) on SSRN. Here is the abstract:
William Baude argues that the prevailing practices of the American judiciary are originalist. But perhaps they are so, if they are so, at the level of discourse rather than at the level of decisionmaking. Judges do speak respectfully of original meanings, but it is not clear that this speech constrains (or should constrain) the substance of their decisions. It does not follow that judges are being purposefully duplicitous about their engagement with original meanings, but perhaps the function of that speech is not best understood as sounding in decisionmaking. Perhaps it is something like the practice among senior American political officials of invoking God in public settings -- a practice that tells us something about the self-conceptions of the speakers and the audiences to whom they speak, but not something that shapes, or that should shape, decisionmaking on contested issues.