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08/04/2019

Andrew Jordan: The (Ir)relevance of Positivist Arguments for Originalism
Michael Ramsey

Andrew Jordan (Judicial Attorney, Ohio Supreme Court) has posted The (Ir)relevance of Positivist Arguments for Originalism (37 pages) on SSRN.  Here is the abstract:

In a series of recent Articles William Baude and Stephen Sachs argue that as a matter of positive law — that is, as a matter of our convergent social practices — a form of originalism is in fact our law. Having provided an account of the content of the law they presume to also have provided an account of sound adjudication. But I argue that this inference requires showing that an account of the content of the law is explanatorily prior to an account of sound adjudication, and I argue that we need not accept this assumption. Indeed, if the positivist view endorsed Baude and Sachs is true, this assumption will turn out to be false. I then provide an account of how the contingent social practices that constitute positive law bear on the further question of how a judge ought to decide a case. And I argue that properly understood the normative relevance of these social practices cannot ground anything like a general duty to apply positive law. Thus, I argue that Baude and Sachs’s positivist arguments have no bearing on the concerns that animate most normative constitutional theorizing — a concern to provide a theory of sound adjudication. Authors who have been concerned about the normative merits of different constitutional theories can safely ignore the positive turn.