Eric Segall Asks: Is Originalism Theory Mostly Normative or Descriptive?Michael Ramsey

At Dorf on Law, Eric Segall: Mending Fences With a Question: Is Originalism Theory Mostly Normative or Descriptive?  From the introduction:

In what I think is Randy [Barnett]’s most recent work, he and Professor Evan Bernick have tried to set forth guidelines for judges to use in the construction zone to help them remain true to original meaning when deciding cases that fall into that zone. Their article is a noble effort but its success (or not) is not the point of this piece. Suffice it to say that much more will be written by originalists and non-originalists about how judges should operate in the construction zone. For the purposes of this post, I accept this entire framework.

Larry [Solum] is probably best known for his work arguing that originalists of all stripes agree with two major premises. The meaning of the constitutional text is fixed at the time of enactment, and that meaning if ascertainable is binding on judges today despite modern conditions (leaving the role of precedent aside). For the purposes of this post, I accept both of those premises.

The question I want to pose is whether Randy and Larry’s work is generally normative, generally descriptive, or both. In other words, do they think that their originalist theories describe what judges have done or what they should do in the future. I don’t mean to suggest this question implicates a binary yes or no answer. Rather, as a general proposition, are their theories more descriptive or more normative? Based on my reading of their work, I think it is likely they disagree on the answer to this question (but even if they do not, I am confident other prominent originalists such as Professor Will Baude and Professor Mike Ramsey would provide substantially different answers to this question).

First, I will provide evidence suggesting why I think Randy and Larry may disagree over this question, and then I will suggest why I think this question is crucially important for future originalism debates.

My answer is that until recently originalism theory was mostly normative, and it still generally is, but the "positive turn" in originalism theory led by scholars such Professor Baude and Duke law school professor Stephen Sachs have sought to reinvent it to some extent in as a descriptive enterprise.  (I think Professor Baude would give the same response; he and I might have a different response to the question of what originalist scholarship ought to be).  I agree with the post that Professor Barnett's scholarship is clearly normative and that Professor Solum is somewhat more complicated.