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06/15/2016

Jeffrey Pojanowski & Kevin Walsh: Enduring Originalism
Michael Ramsey

Jeffrey A. Pojanowski (Notre Dame Law School) & Kevin C. Walsh (University of Richmond School of Law) have posted Enduring Originalism (Georgetown Law Review Vol. 105, 2016) on SSRN. Here is the abstract:

Why should anyone be a constitutional originalist today? Why won’t originalism go away? These questions are related and important, and this Article tackles them head-on.

If our law requires originalism in constitutional interpretation, then that would be a good reason to be an originalist. This insight animates what many have begun to call the “positive turn” in originalism. Defenses of originalism in this vein are “positive” in that they are based on the status of the Constitution, and constitutional law, as positive law. This approach shifts focus away from abstract conceptual or normative arguments about interpretation and focuses instead on how we actually understand and apply the Constitution as law. On these grounds, originalism rests on a factual claim about the content of our law: that we regard the framers’ law, and any other further lawful changes, as our law today. If we do not, then originalism is not the law and perhaps should be abandoned in favor of what is.

The positive turn points in the right direction but, we argue, does not go far enough. To be sound and complete, a positive-law argument for constitutional originalism must also have firm conceptual and normative grounds. Without conceptual and normative anchors, positive-law originalism is subject to drift in a jurisprudential sea in which “whatever is, is law.” An appropriately anchored theory depends on a defensible concept of the Constitution as positive law to justify a normative conclusion about how faithful participants in our legal system ought to interpret it in developing constitutional law. This Article explains how the classical natural law tradition of legal thought — which is also the framers’ tradition — supplies a solid jurisprudential foundation for constitutional originalism in our law today.

This isone of the papers from the San Diego Originalism Works-in-Progress conference last February.  Very interesting.