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07/16/2015

Harvard Journal of Law and Policy Summer Issue Now Published
Michael Ramsey

The latest issue of the Harvard Journal of Law and Public Policy (Vol. 38, No. 3, Summer 2015) is now published.  It has one of the most important originalist articles of the year, which I've discussed before: Stephen Sachs, Originalism as a Theory of Legal Change.  From the introduction:

Originalism is usually called a theory of interpretation, a particular way to read a text. Best understood, though, originalism is much more than that. It’s a theory of our law: a particular way to understand where our law comes from, what it requires, and how it can be changed.

This view starts with a common assumption of legal systems, that the law stays the same until it’s lawfully changed. A statute that’s hundreds of years old can still be good law today, simply because it was properly enacted at some earlier time and has never been amended or repealed. If you start with an old statute book and add everything enacted since, you should end up with the code as it stands today.

To an originalist, what’s true of old statutes is also true of our old Constitution, and indeed of our old law generally. Whatever rules of law we had at the Founding, we still have today, unless something legally relevant happened to change them. Our law happens to consist of their law, the Founders’ law, including lawful changes made along the way. Preserving the meaning of the Founders’ words is important, but it’s not an end in itself. It’s just a means to preserving the content of the Founders’ law.

Not everyone agrees with this picture, of course; not even all “originalists.” People use the word “originalism” in lots of different ways. But treating originalism as a claim about law, not just interpretation, gets us past some of the debates that have occupied the field—and it helps us see the way to more fruitful areas for agreement.

Also in the volume is this important article by co-blogger Mike Rappaport: Why Non-Originalism Does Not Justify Departing from the Original Meaning of the Recess Appointments Clause, which was cited in draft form in Justice Scalia's Noel Canning concurrence.

(As these and other articles show, this publication has some of the best and most influential writing available.)