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01/29/2019

William Baude & Stephen Sachs: Grounding Originalism
Michael Ramsey

William Baude (University of Chicago - Law School) and Stephen E. Sachs (Duke University School of Law) have posted Grounding Originalism (Northwestern University Law Review, forthcoming) on SSRN.  Here is the abstract: 

How is the Constitution to be interpreted? The "positive turn" in legal scholarship treats constitutional interpretation, like statutory or contractual interpretation, as governed by legal rules grounded in actual practice. In our legal system, that practice is committed to a certain form of originalism: our system's official story is that we follow the law of the Founding, plus all lawful changes made since.

Or so we've argued. Yet this answer produces its own set of questions. How can practice solve our problems, when there are so many theories of law, each giving practice a different role? Why look to an official story, when on-the-ground practice may be confused or divided, or may even make the story ring false? And why take originalism as the official story, when so many scholars and judges seem to reject it?

This Article offers a response to each. To the extent that legal systems are features of particular societies, a useful theory will have to pay attention to actual practice in those societies, including the particular aspects of legal practice we describe. This positive focus can indeed resolve a great many contentious legal disputes, as shared legal premises lead to conclusions that might surprise us, or that ultimately establish one side in a dispute as correct. The most serious challenge to our view is the empirical one: whether originalism is or isn't the official story of our law. Stripped of their jurisprudential confusion, however, the best competing accounts of our law seem to have far less supporting evidence than our own account. Focusing on social practice as it stands today turns out to direct our attention to the Founders, and to the changes over time that their law has recognized.