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08/13/2019

More from Eric Segall on Originalism as Our Law
Michael Ramsey

At Dorf on Law, Eric Segall:  Originalism as Current Law? Yet Another response to Baude and Sachs.  From the introduction: 

Last Friday, two things happened to me related to originalism. I received in the mail reprints of an article I wrote for Constitutional Commentary (no link yet) called "Originalism Off the Ground." The piece was a response to yet another Arthurian attempt by Professors Will Baude and Stephen Sachs to convince the world that Originalism is indeed our law. The thrust of my piece was that the collective work of Will and Steve on originalism and history (I will use their first names because I consider them friends) has failed to address the core realist critique that constitutional law is mostly the sum of the Justices' value preferences, and originalism and all other meta theories play at most a negligible role.

The second thing that happened on Friday was that Steve put on Facebook a link to his and Will's new essay titled "Originalism and the Law of the Past," published by the Law and History Review. The SSRN link is here. The third and fourth sentences of this essay state that "originalism is best understood as a claim about modern law-which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders' law, unless lawfully changed."

Their entire essay (with one small exception discussed below) ignores the argument that the "law" of the past in constitutional law is composed of imprecise text, contested history, political practices that often lead to opposing perspectives about the issue of the day, and Supreme Court precedent which is mostly dictated by values, politics, and experiences, not history. In sum, once again, Will and Steve do not address in any serious way the realist critique. They are avoiding it like the plague (I have drawn their attention to it on numerous occasions in person and in writing). For two legal positivists, this avoidance is important. ...