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37 posts from July 2019

07/31/2019

Lino Graglia: Creative Constitutional Interpretation as Justification for Rule by the Supreme Court
Michael Ramsey

Recently published, in the Arizona State Law Journal, Lino A. Graglia (University of  Texas Law School): Creative Constitutional Interpretation as Justification for Rule by the Supreme Court (51 Ariz. St. L.J. 109 (2019)).  Here is the abstract:
 
Contemporary constitutional scholarship presents the puzzling phenomenon of scholars endlessly writing and debating methods of constitutional interpretation as the central issue to be decided despite the apparent fact that the Constitution plays very little role in the Supreme Court’s so-called constitutional decisions. Constitutional law is the product of judicial review, the extraordinary power, suspect in a democracy, of unelected judges to overturn social policy choices made by elected legislators and other officials of government ostensibly on the ground that they are prohibited by the Constitution. The reality is that our very old and very brief Constitution, even as amended, does not and cannot provide answers to contemporary controversial social problems. It precludes very few policy choices. The Supreme Court’s rulings of unconstitutionality are, therefore, necessarily almost always the result of the policy preferences of a majority of the Justices and their willingness to substitute them for the preferences of legislators.1 The central issue of constitutional law, therefore, is not how the Court should interpret the Constitution, but whether the Court should be the most important institution of American government with the power to remove from the ordinary political process any policy issue it chooses and assign it for final decision to itself. In essence, it is whether decision making by majority vote of a committee of nine unelected officials effectively holding office for life and deciding for the nation as a whole from Washington, D.C., is an improvement of the system of representative self-government in a federalism with separation of powers created by the Constitution. The function of unusual alleged methods of constitutional interpretation is to obscure that issue.
 
(Thanks to Mark Pulliam for the pointer).

07/30/2019

Saul Cornell on Originalism and History (Again)
Michael Ramsey

In the Law and History Review, Saul Cornell: Reading the Constitution, 1787–91: History, Originalism, and Constitutional Meaning (Law and History Review, August 2019).  From the introduction (footnotes omitted): 

Recent originalist scholarship presents a case study in the problem of interdisciplinary inquiry in contemporary law. Borrowing insights from outside of the law without fully engaging with the relevant theoretical debates in other fields has resulted in a misapplication of key concepts. Rather than help originalists develop a more sophisticated approach to history and respond to earlier critiques of their methods, much recent originalist scholarship has used these insights as a means to avoid direct engagement with these earlier criticism. The result of such borrowing has been greater distortion of the historical meaning of the Constitution, not less.2 Nothing better illustrates the problems inherent in recent originalism than Second Amendment scholarship and jurisprudence. The Supreme Court’s ruling in District of Columbia v. Heller relied heavily on originalist scholarship, and leading originalists have praised the case as the best example of their method in practice. Yet, scholars from across a wide ideological and methodological spectrum have criticized Heller’s many historical errors and anachronistic interpretations of Anglo-American legal texts. Rather than praise the “gravitational pull of originalism,” as one prominent originalist and Heller defender has done, it might be more apt to characterize originalism as a scholarly black hole that has systematically warped legal and constitutional texts, in some instances almost beyond recognition.

Moving beyond the current flaws in originalism will require developing a genuinely historical approach to reading Founding Era texts that draws on the best interdisciplinary methods available. Despite paying lip service to ideas about reading the Constitution historically, originalism continues to invoke the authority of history without actually engaging in a genuinely historical practice. The assumptions at the root of most originalist inquiry are dubious at best, and in many instances demonstrably false. Originalists continue to treat eighteenth-century constitutional speech and communication as if it were little different that ordinary interpersonal communication, but virtually all of the texts consulted by originalists were generated as part of a rhetorical public debate that shares little with everyday speech situations. Other originalists claim to avoid the problems of this linguistic approach by adopting one focused on the legal, not the ordinary, meaning of the text. This approach also ignores the profound differences between American law in the eighteenth century and modern law.

Originalism has already gone through two major paradigm shifts during the last generation.6 Originalism 1.0 was focused on intent. By contrast, originalism 2.0 eschewed intent and instead focused on public meaning. Originalism appears to be morphing yet again: version 3.0 is still somewhat inchoate, but its champions have turned away from an emphasis on linguistic meaning, stressing instead legal meaning.  Either conceived in terms of the “language of law” or as “an inclusive originalism” the most recent variants of originalism continue to approach the contentious and discordant constitutional and legal culture of post-revolutionary America from the perspective of an outdated model of consensus history that few serious historians would recognize as accurate. All of these variants of originalism have failed to deal with the remarkable vitality and diversity of the intellectual and cultural world of the Founders. The result is a flat one dimensional account of Founding Era constitutional debates. As the Heller decision attests, the stakes in this debate are not merely academic.

Although a few left-leaning examples of originalism have emerged, the approach continues to be largely the province of the political right. Indeed, originalism has been effectively weaponized by those eager to advance an ideological agenda that not only includes advancing the cause of gun rights, but ultimately aims to undo much of the modern regulatory and administrative state. Instead of addressing the fundamental historical problems with their methodology, leading originalists have turned to a variety of theoretical fixes. Some originalists have borrowed from modern philosophy of language, analyzing constitutional communication as if it were essentially little different than ordinary face-to-face communication between social equals engaged in a rational exchange of ideas. Another prominent group of originalists favors the use of ideal imaginary readers constructed by modern legal scholars from Founding Era sources. Finally, supporters of originalism 3.0 claim that by treating the Constitution as a legal text or a text written in the “language of law” one can arrive at an objective fixed meaning: the long sought after originalist holy grail. None of these theoretical fixes solves the core problem with originalism: the absence of a rigorous historical methodology for dealing with the complexity of Founding Era constitutional thought and culture. Reading legal texts historically will require that originalism adopt standard historical practices, not reject them. Scholars must get the history right before deciding if any of the historical meanings recoverable from a careful study of the original debate over the Constitution might be relevant to modern law. Determining which meanings might be probative or dispositive for modern legal issues
is a separate task from the process of uncovering the legal meaning of Founding Era constitutional texts. Deciding what, if any, relevance such historical meaning ought to have in contemporary law is at its core a legal question, and not one that history can answer. Still, if legal scholars are going to cite history as authority, they have an obligation to get the history right.

The article continues with some particularly strong criticism for the work of Larry Solum, Randy Barnett and John McGinnis & Michael Rappaport.

(Via How Appealing).

07/29/2019

Ingrid Wuerth: The Due Process and Other Constitutional Rights of Foreign Nations
Michael Ramsey

Ingrid B. Wuerth (Vanderbilt University - Law School) has posted The Due Process and other Constitutional Rights of Foreign Nations (Fordham Law Review, forthcoming 2019) (57 pages) on SSRN.  Here is the abstract:

The rights of foreign states under the U.S. Constitution are becoming more important because the actions of foreign states and foreign state-owned enterprises are expanding in scope and the legislative protections to which they are entitled are contracting. Conventional wisdom and lower court cases hold that foreign states are outside our constitutional order and that they are protected neither by separation of powers nor by due process. As a matter of policy, however, it makes little sense to afford litigation-related constitutional protections to foreign corporations and individuals, but to deny categorically such protections to foreign states.

A careful analysis of Article III and of the Fifth Amendment shows that the conventional wisdom and lower court cases are wrong. Foreign states are protected by Article III’s extension of judicial power to foreign-state diversity cases, the purpose of which was to protect foreign states from unfair proceedings and to prevent international conflict. The Article III “judicial power” over “cases” also presupposes both personal jurisdiction (over any kind of defendant) and other process-based limitations. The Fifth Amendment overlaps with Article III in important ways. It also protects foreign states. They are “persons” due the same constitutional “process” to which other defendants are entitled. Modern scholars have struggled to see the connection between due process and personal jurisdiction. The cases involving the immunity of foreign states makes the connection clear for all defendants. “Process” only reached defendants within sovereign power, or jurisdiction, of the issuing court. 

Examining the Constitution from the perspective of foreign states thus reveals the document in a new light, illuminating its core features in ways that advance our historical and theoretical understanding of the Constitution, with significant implications for several additional areas of modern doctrine. The analysis of separation of powers and due process also lays the groundwork for determining whether foreign states have additional constitutional rights.

(Via Lawfare, where the author gives a summary of the paper).

I read an earlier draft, and it's an outstanding and thought-provoking contribution.  Despite the apparently narrow focus suggested by the title, its implications call for a broad rethinking of the original understanding of judicial jurisdiction.  (And as a further aside, many of the constitutional aspects of civil procedure are ripe for substantial originalist rethinking -- this is a great start.)

07/28/2019

John McGinnis on Justice Thomas and Precedent
Michael Ramsey

At Law and Liberty, John McGinnis:  Why Justice Thomas Is Wrong about Precedent.  From the introduction:

This term Justice Clarence Thomas wrote an important concurring opinion on stare decisis in Gamble v. United States, the case on the scope of double jeopardy. There Thomas rejects stare decisis for both constitutional and statutory cases except in cases where the precedent is not “demonstrably erroneous.” Thomas recognizes that judges in England at the time of the Constitution applied a more robust doctrine of stare decisis, but rejects the notion that federal judges have the authority to follow a similar doctrine today in statutory and constitutional cases. For Thomas, the difference is that English common law was judge-made, but “we operate in system of written law in which courts need not—and generally cannot—articulate the law in the first instance.”

The problem with Thomas’ historical argument is that judges in England also interpreted written law in the form of statutes. And parliamentary supremacy debarred them from “articulating the law in the first instance” in that context as well. Nevertheless, English courts regularly applied stare decisis to matters of interpreting the written law of statutes. Thus, it is not true that the change to written law put the traditional use of stare decisis outside the scope of judicial power that judges possess according to Article III. ...

07/27/2019

Richard Primus on Locke and Justice Gorsuch
Michael Ramsey

At Balkinization, Richard Primus: John Locke, Justice Gorsuch, and Gundy v. United States.  From the core of the argument:

In Part II [of his dissent in Gundy v. United States], Gorsuch builds his theory about nondelegation from the fundamentals of constitutional argument, going back to the text and the Founding.  In the third paragraph of his account, by way of explaining how the Framers thought about the separation of powers, Gorsuch quotes a passage a bit more than a hundred words long from John Locke’s Second Treatise of Government.  Locke was not a Framer of the Constitution: he lived in the wrong century and also in the wrong hemisphere.  But Gorsuch nonetheless confidently presents the passage from Locke as a statement of the “particular arrangement” on which the “framers insist[ed].”  Locke, says Gorsuch, was “one of the thinkers who most influenced the framers’ understanding of the separation of powers[.]” 

                Was he really?  Gorsuch’s dissent, which has a hundred and seven footnotes, cites no authority for the proposition that Locke shaped the dominant Founding conception of the separation of powers.  Other than his say-so, Gorsuch gives the reader no reason to think that the Framers meant to erect just the system of separated powers that Locke articulated in this quoted passage, written a hundred years before and three thousand miles away.  And there is serious reason to doubt that the Framers had any particular commitment to following Locke on the point.  Locke was, to be sure, an influential thinker in the English-speaking world during the eighteenth century: there’s a famous phrase in the Declaration of Independence that sure seems like a riff on his work.  But the fact that Jefferson riffed on Locke in the Declaration does not mean that Locke was pervasively influential in the formation of the Constitution. 

                For several decades now, leading scholars have cast considerable doubt on the idea that Locke’s political writing was particularly influential for the Founders.  (John Dunn and Mark Goldie are good examples, and what follows in this paragraph largely tracks their work.)  ...

07/26/2019

Josh Blackman: Originalism and Stare Decisis in the Lower Courts
Michael Ramsey

Josh Blackman (South Texas College of Law Houston) has posted Originalism and Stare Decisis in the Lower Courts (14 pages) on SSRN.  Here is the abstract:

The tension between originalism and stare decisis is well known. Many of the Supreme Court’s most significant constitutional decisions are completely unmoored from the original public understanding of the Constitution. A Supreme Court Justice may recognize that a given precedent is non-originalist, but follow it anyway because of the doctrine of stare decisis. Or, a Supreme Court Justice may decide to deviate from stare decisis because that precedent is non-originalist. The Supreme Court’s unique status, which is perched atop our judiciary, affords its members leeway to make either decision. 

Lower court judges, however, do not have that sort of discretion. Consider a judge on a federal circuit court of appeals. First, she is bound by Supreme Court precedents interpreting the Constitution, regardless of whether those precedent are originalist or not. No matter how wrong a given Supreme Court case is, that precedent must be followed. Second, she is bound by circuit precedent interpreting the Constitution, regardless of whether that precedent is originalist or not. Only an en banc majority can reverse circuit precedent, and those proceedings are quite rare. 

An originalist circuit judge would only have free jurisprudential rein in the rare case of first impression, where neither the Supreme Court nor the circuit court had considered a particular constitutional question. Those cases are even rarer. Even then, the circuit judge would still be at a disadvantage. Circuit courts seldom receive the wealth of originalist party and amicus briefs that are directed to the Supreme Court. Here, the circuit judge will often have to do all of her own originalist research—the proverbial law office history report—without the benefit of the adversarial process. 

In short, it’s tough for a lower-court judge to be a constitutional originalist. But it can be done. Part I of this essay explains when a lower-court judge can be an originalist. Part II explains how a lower-court judge can be an originalist. 

07/25/2019

John Harrison: Executive Power
Michael Ramsey

John C. Harrison (University of Virginia School of Law) has posted Executive Power (53 pages) on SSRN.  Here is the abstract:

This article presents a new conceptualization of the executive power conferred by Article II of the Constitution. That conceptualization is a more detailed version of the Whig understanding of executive power, which was common among Americans when the Constitution was adopted. The executive power is the capacity to use the resources of the government to perform the functions of the government, subject to the affirmative requirements and limitations imposed by law. Executive officials operate in a legal environment of rules that empower and constrain them, but those rules do not come from the executive power itself. They come from elsewhere in the Constitution and laws. Possession of executive power by itself confers no policy discretion, no authority to use the government’s resources, and no privileges to invade private interests. Military functions are executive, and members of the military are likewise subject to rules that empower and constrain them, including especially the law of war. The President’s status as Commander in Chief makes him the highest commander while leaving him, like all commanders, subject to the law. The article identifies possible constitutional sources of executive policy discretion other than the executive power itself, and explains that presidential control of the executive branch is consistent with the limited conception of executive power it espouses. In addition to being familiar at the time of the framing, the Whig understanding of executive power figured prominently in the Federal Convention's drafting and has been a mainstay of debates about the executive throughout the Constitution’s history.

Professor Harrison is blogging about the article at Volokh Conspiracy -- here is the first post.

07/24/2019

Further Responses to Jesse Merriam on Originalism and Legal Conservatism
Michael Ramsey

At Law and Liberty, two further responses to Jesse Merriam's essay Is Legal Conservatism as Accomplished as It Thinks It Is?:

Michael O'Shea (Oklahoma City): Normative Foundations of Originalism.  Here is the introduction:

Law & Liberty has become a major source of analysis of the future of legal conservatism and its signature doctrines. Back in April, Michael Greve’s “Originalism as Ideology”[1] diagnosed contemporary originalism as an “ideology” in the specific Hegelian sense: a timely idea that gets treated as timeless, with the result that its contingency and motivations are overlooked or denied. Greve argued that originalist practice “would benefit from candor and reflection,” and especially from more effort to “connect semantic theories to a substantive theory of the Constitution and of constitutional politics.”

Now comes Jesse Merriam’s thought-provoking Liberty Forum essay for July, which  draws the very kinds of substantive connections Greve called for. Merriam places the recent trajectory of originalist theory in the larger context of a critique of the fecklessness of the American conservative movement. He concludes that the apparent triumphs of the Federalist Society and originalist theory have not, in general, produced victories for conservatism—particularly not for the traditionalist branch of conservatism that focuses on “faith, family, and community.” Rather, originalism and its associated institutions like the Federalist Society have increasingly fostered a flexible, abstraction-heavy interpretive approach of “original public semantic meaning” that (especially in the academy) has been used to assimilate and validate past progressive cultural victories, while empowering present and future courts to reach ideologically libertarian results congenial to many elite lawyers and law professors.

I share the view held by Greve and Merriam (also by alert progressives like Eric Segall) that originalist theory has been evolving in ways that are more prone to obscure the exercise of judicial discretion than to constrain it. And I agree with Merriam that this development has not been particularly positive, either for legal conservatism or for the broader conservative project in America. The prior contributions to this Forum have engaged at a relatively broad level the issues raised by the possible tension between originalism and conservatism. Here, I’d like to supply some detail. My hope is to flesh out the discussion by examining a particular way that a subset of originalist theory (one with close ties to the institutions of legal conservatism) is becoming, not merely detached from conservative goals, but inimical to them.

And Jeffrey Pojonowski (Notre Dame): Conservatives and Originalism: Their Relationship, Reconsidered.  Here is the introduction:

Jesse Merriam argues that the unifying thread in the modern legal conservative movement is a commitment to originalism, especially in constitutional interpretation. If, as Merriam also argues, the jurisprudential analogue to fusionism is under pressure, originalism’s conservative bona fides will be a central point of contention. 

Merriam cautions against equating the rise of originalism with a triumph of conservatism: Originalism’s indeterminacy leaves room for liberal outputs—and professors, including those labeled “conservative,” will make those cases. This claim fits with the broader story he tells, in which the legal conservative movement garners victories for economic and social libertarianism but leaves social conservatives’ dreams deferred and regards economic populism as heresy. His Liberty Forum essay argues, provocatively, that the conservative legal movement is in result, if not in aim, a classically liberal project.

This response asks whether, and how, originalist interpretation can be conservative. This might appear to be the wrong question. Originalism is an interpretive method, not a worldview or governing philosophy. Many originalists emphasize that the method lacks any political valence. It is, in fact, this disconnect between originalist interpretation and conservative politics that makes Merriam’s unease about originalism and the legal conservative movement possible.

Yet originalism had its revival in that movement, and the method remains its fighting interpretive faith. To be sure, there are originalists who are not conservative or who regard the political outputs of originalism as irrelevant to the project. There are also a few “black swan” academic conservatives working in legal interpretation who have little time for originalism. But it is worth pondering why a method that is putatively separable from a political theory has a center of gravity resting firmly in the conservative legal movement. Hardened realists will say this naïve question answers itself, but I am more willing to take defenders of originalism at their word and consider whether there is in fact a connection between originalism and conservatism that runs deeper than crude results-orientation. 

I will argue that there is a strong conservative case for originalism as an abstract, formal matter. Nevertheless, the conservative case for originalism as applied to our particular constitutional order at this particular time is less certain and more complex. This essay is not a conservative case against originalism. Rather I will be thinking out loud about unresolved questions that have been nagging at me. I believe that for those who, like me, are sympathetic to originalism and the conservative disposition, these are worries worth confronting.

07/23/2019

Rick Hills on Baude & Sachs on Originalism
Michael Ramsey

At Prawfsblawg, Rick Hills (NYU): What makes history constitutionally relevant? Some Reservations about Baude and Sachs’ view of the past.  Here is the introduction:

I am alternately puzzled and exasperated by originalist scholars’ attitude towards eighteenth century history. On one hand, they flyspeck old documents unrelated to specific constitutional texts to figure out what those texts mean. (Consider, for instance, Jennifer Mascott’s painstakingly erudite analysis of how eighteenth century writers used the noun “officer” in various corpora of texts to figure out what “Officer of the United States” means in Article II). On the other hand, they mostly ignore the great partisan disputes about banks, monarchy, natural aristocracy, religion, and public debt and the like, that motivated these texts. The historical past in legal scholarship on “original public meaning” has this dignified but misleadingly monotonous look of a white marble Classical Roman statue — misleading, because those statues were originally painted in life-like colors that only washed away with the passage of time. Colorlessly apolitical constitutional interpretations, like colorless Classical statues, are just historically inaccurate.

William Baude and Stephen Sachs have helped me think about this attitude towards history with a typically lucid and analytically deep essay. They argue that lawyers should focus on “legal doctrines and instruments specifically, rather than intellectual movements generally” when trying to figure out what past laws mean, because our law today “grants continuing force to the law of the past,” not the cultural or intellectual movements of the past. Sure, cultural movements, partisan motivations, ideological fights might be the cause of those old legal doctrines, but our modern law “typically” does not incorporate these extra-legal forces. Instead, it incorporates only “legal doctrine (treatises, court cases, and so on).” Baude and Sachs cite Hart’s Rule of Recognition to support the idea that the “internal point of view” leaves out the political, partisan, cultural motivations for the law: In their view, modern law incorporates only this “internal point of view” of the law, not the law’s “external” causes.

As I explain after the jump, I think but am not quite sure that I disagree with almost every part of their argument. Baude’s and Sach’s essay is, however, by far the most careful effort so far to justify a scholarly practice that has previously been followed but not much defended by originalists. For those readers who want the short version, here are my two bones to pick. First, Hart’s “internal point of view” nowhere suggests that the law consists only of “legal doctrine.” Instead, ideological, cultural, even partisan platforms found outside conventional law sources, can just as easily be the basis for an elite’s “internal” consensus of what “law” is. Second, the ideological purposes and functions of constitutional language must be part of legal interpretation of constitutional text from the outset, because (as Ryan Doerfler has persuasively argued) the pragmatic function of words is just as much part of their meaning as semantic usage.

A thoughtful, insightful discussion, plus some very high level responses in the comments, including by Stephen Sachs, Asher Steinberg and Ryan Doerfler.   I especially endorse this part of Professor Sachs' comment:

Focusing on the politics, though, seems to miss the point of all the politicking. Getting to "dry legal analysis" is exactly what political bar brawls are *for*. Interest groups have knock-down drag-out fights in Congress, spending plenty of good money on lobbyists, just so that they can influence dry formalisms like "which words are put into the statute and which aren’t." Victory in the political fight is having your super-controversial policy views become the durably *less*-controversial lawyers' understanding of some lawmaking event.

Doing that dry legal analysis doesn't mean ignoring the bar brawl; it just means valuing the bar brawl for what it tells us about the legal events, and not the other way around. We've written before (in our "Law of Interpretation" piece) about how looking at legal texts solely as pieces of language can get things wrong. Of course we'd need to know what was going on in early-20th-century politics to properly read the Seventeenth Amendment as leaving Senate terms intact, and not as proposing a temporary six-year trial balloon ("The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years..."). But suggesting that the Seventeenth Amendment codified the political aims of the Progressive movement generally, and not just certain individual changes that managed to get through the ratification process, would also be a mistake.

So non-doctrinal sources are fine, and indeed unavoidable. But they can also be misused; these are issues of weight, not admissibility. Marshall did talk a lot about principles, but as evidence of what rule the Constitution had recently provided, not as free-standing norms that operate independently of its historical content. And while the contending sides sometimes compromised by fudging it, not everything that looks ambiguous to us was equally ambiguous back then--and when it was, it's our job to apply the fudge as best we can. As we note in the paper, "Ordinary business contracts are hardly 'air-tight,' ... but we write them anyway: the parties’ choice to adopt an integrated agreement is a choice to rest their legal relations on contested inferences drawn from a single piece of text."

I'll add this, in partial defense of originalists' focus on legal text over "great partisan disputes about banks, monarchy, natural aristocracy, religion, and public debt and the like, that motivated these text."  First, I think it is not true that originalists generally ignore the "great partisan debates."  (For example, an overwhelming volume of analysis just of the bank debate has been presented just at the San Diego originalism works-in-progress conference just in the last few years.  Perhaps Professor Hills should come out to San Diego and see what we do.)  But that point aside, I think originalists (again speaking generally) recognize that one can only go so far with the great partisan debates.  As Professor Sachs says, ultimately the debates were reduced to text.  Sometimes the text is clear and sometimes not, but resort to the partisan debates isn't likely to help that much.  To defend Professor Mascott's paper, for example: the question she takes up is the meaning of "officer of the the United States."  Now maybe Professor Hills would find something in the "great partisan debates" that helps us answer that question, but I doubt it.  On points of fairly narrow textual meaning, at least, a fairly narrow textual focus seems appropriate. 

And even on broader, more ideologically contested points, it is after all the text that most originalists regard as decisive.  Take the issue to the declare war clause, which I've written extensively about.  There were a range of views about how strong the executive should be, and to be sure one should sort through those in evaluating how the Constitution allocated the war initiation power; but ultimately the original allocation is the one reflected in the text, so one needs to look at the actual words of the text and how those words were commonly used at the time.  I'm not sure how Professor Hills would do it differently.

07/22/2019

Lawrence Solum on Positive and Normative Legal Theory
Michael Ramsey

From Legal Theory Blog's Legal Theory Theory Lexicon: Positive and Normative Legal Theory.  From the conclusion:

The distinction between positive and normative legal theories is fundamental, but once you have the terminology down, it is usually easy to apply. The tricky part comes when you are confronted with theories like Dworkin's that blur the lines between the positive and the normative. When you do, my advice is that you stay on your toes. A common mistake is to try to force interpretivist theories into either the positive or the normative. Although there may be deep reasons of legal theory that would justify such a forcing move, it will rarely be productive to start there. A better strategy is to try to understand such hybrid theories from the inside first. When you are constructing your own theories, it is always important to be sure you know whether your theory is positive, normative, or has elements of both.

This is an important distinction to watch for in originalist theory.  Some justifications for originalism are expressly normative, and some are expressly descriptive.  But a lot of them blur the line.  And I doubt the latter is a good thing.  Unlike Professor Solum, I'm inclined to "try to force interpretivist theories into either the positive or the normative."  Or at least, I think it should be made clear what part is normative and what part is descriptive.  Otherwise, theories may covertly try to get normative mileage from their descriptive elements, and vice-versa.