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36 posts from May 2021

05/31/2021

Evan Bernick: Policing as Unequal Protection
Michael Ramsey

Evan D. Bernick (Georgetown University Law Center) has posted Policing as Unequal Protection (86 pages) on SSRN.  Here is the abstract:

This Article proposes a constitutional framework for resistance to police violence that is informed by the history of the Fourteenth Amendment and of policing, as well as the vision of a radical social movement: the Movement for Black Lives (“M4BL”).

Central to the Article’s analysis is the concept of policing. “Police” usually calls to mind either (a) individual law-enforcement officials; or (b) the institutional body of which those officials are a part. But the term originally referred to a mode of governance — one that was hierarchical, discretionary, and largely unaccountable to the law. It will be argued that the institutional police in the United States have engaged in policing-as-governance since the Founding; that the design of the Equal Protection Clause of the Fourteenth Amendment was informed by the policing of Black Americans before and after the Civil War; and that the Clause was designed to prevent subjugation — the forcible control of some people by unaccountable others — of a kind that is inherent to policing, though not to law enforcement.

The Article then uses the frame of anti-subjugation to analyze particular proposals that have been advanced and modes of resistance to police violence that have been used by M4BL activists and allied scholars. These include “cop-watching,” community bail funds, the contestation of police budgets, the BREATHE Act, disparate-impact-based regulation of policing, and legal challenges to Fourth Amendment and Equal Protection doctrines that have enabled police violence. Finally, the Article argues that critical engagement with the strengths and weaknesses of the historical Equal Protection Clause could not only help reduce the harms of oppressive systems in the present but be generative of ideas about future constitution-building.

Addressing Three New Points About Bostock and Oncale
Andrew Hyman

David Weisberg takes the position that the Civil Rights Act of 1964 bans discrimination against men or women based on sex even if there is no prejudice or bias against either sex.  He makes three points in response to my recent post about Bostock v. Clayton County and Oncale vSundowner Offshore Services.  I'd like to reply to each of them.

First: Mr. Weisberg says that some of what I wrote was legally irrelevant, and he is correct about that.  I wrote, “Apparently, Oncale was not actually gay.  It’s unclear from the Court’s opinion what the sexual preferences of his harassers were….”  All of that was legally irrelevant, but it’s still good to avoid creating misimpressions about Oncale, and about his co-workers, and that’s all I was trying to do there.  I also said that it’s “unclear how Oncale would have been treated if he had been a female suspected by those co-workers of being homosexual.”  Mr. Weisberg asks: “How would a court even begin to decide how Mr. Oncale would have been treated if he had been a female suspected by co-workers of being a lesbian?”  Well, juries determine intent all the time.  The Court said in Oncale, “A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.”  If it’s not a mixed-sex workplace, then the plaintiff might offer other kinds of evidence, such as whether the words spoken by the harassers were gender-specific, or instead were generically homophobic. Perhaps a plaintiff could also prove that the harassers were driven by their own homosexual proclivities (of the Deliverance variety), suggesting that women would have been safe.

Second: Mr. Weisberg also brings up the statute’s application to religious attire instead of sex, and I would simply say that there are only two sexes (within the original meaning of the statute) whereas a single religion can include multiple informal sects, some of which may differ from each other only as to attire, and the statute has been reasonably interpreted as banning job discrimination against each one of those sects.  Sex and sects are therefore not easily compared.

Third: I again agree that Oncale was entirely correctly decided.  But the cases are quite different, assuming that, in Oncale, there was gender prejudice or bias against Oncale, while in Bostock there was no gender prejudice or bias against Bostock.  For what it's worth, this is simply an issue of the original meaning of the Civil Rights Act of 1964, and I am not expressing any opinion at all about whether that federal law should be, or should have been, broadened.

UPDATE: DAVID WEISBERG replies:

Putting aside issues Andrew Hyman now concedes are irrelevant, I’ll focus first on his take on precedents regarding religious symbols and garb. He thinks those precedents are inapposite because, while there are only two sexes, there are many religions and sects, and “some may differ from each other only as to attire[.]”  This is, once again, irrelevant, which can be shown by re-working Justice Alito’s demonstration that an employer could reject all homosexual job applicants without ever learning their sex.  (Alito Bostock slip op. 9.)  An employer could, before setting eyes on any applicant, ask: “Do you ordinarily wear any religious symbol or garb visible to others?  If your answer is ‘yes’, would you insist on wearing that symbol or garb despite our rule prohibiting employees from wearing such in our workplace?”  If the second answer is also ‘yes’, the applicant is rejected.  The employer doesn’t know the individual’s particular religion, yet every rejection (possibly excepting employers that are religious institutions) violates Title VII.  This result implies that, if a characteristic (e.g., wearing a religious symbol or garb) is not among the protected characteristics listed in the statute, but is nevertheless sufficiently closely related to one that is listed (“religion”), it will be protected under the statute.

Mr. Hyman says that there was no “gender prejudice” or “bias” against the Title VII complainants in Bostock.  Those words are not in the statute.  Also not in the statute are words to this effect: "Homosexual employees are entitled to terms or conditions of employment that include a workplace free of sexual harassment, but are not entitled to any other statutory protections."  Oncale holds that homosexual employees are indeed entitled to a workplace free of sexual harassment.  This implies that homosexual behavior (just like wearing a religious symbol or garb) is sufficiently closely related to a protected characteristic—“sex” (“religion”)—to be itself protected under the statute. 

The position taken by Mr. Hyman and the Bostock dissenters is that Title VII requires an employer to provide homosexual employees with a workplace free of sexual harassment, but Title VII nevertheless permits that very same employer to refuse to hire homosexuals, to pay less to homosexual employees, and also to fire homosexual employees because they’re homosexual.  I think that result is inconsistent with Oncale and with well-established precedents regarding religious symbols and garb.

05/30/2021

Bryan Wildenthal on D.C. Statehood
Michael Ramsey

At Jurist, Bryan Wildenthal (Thomas Jefferson, visiting USD): D.C. Statehood Is Within Congress’s Power But Must Be Done Right.  From the introduction:

Critics of the D.C. Statehood Bill, which passed the House on April 22, rightly object that it cannot properly override the 23rd Amendment to the Constitution. The House Bill creates utterly unnecessary problems under the Amendment by proposing a greatly reduced “District”, encompassing the White House, the Capitol and Supreme Court buildings, and the National Mall.

That Amendment mandates that “[t]he District constituting the seat of government of the United States,” however small it may be, is constitutionally entitled to choose three presidential electors, albeit “in such manner as the Congress may direct.”

Washington, D.C., if granted statehood, would no longer be that “District” and would be entitled to its own electors simply as a state, under Article II of the Constitution. It would be absurd for any remaining “District,” with no residents other than the presidential family and perhaps a few homeless persons, to continue getting another three presidential electors.

The current Statehood Bill purports to nullify the 23rd Amendment by repealing the legislation governing the “manner” of its implementation. But that’s a disturbing end-run around a constitutional guarantee of voting rights and would surely be struck down (as it should be) by the current Republican-dominated Supreme Court. It is absolutely the last thing Democrats (of all people) should support, given nationwide on-going attacks by many Republicans on voting rights and election integrity. Democrats may hope to motivate repeal of the 23rd Amendment itself, but Republicans will obviously never agree to that, and it’s impossible to amend the Constitution without overwhelming bipartisan support.

The Biden Administration reportedly supports amending the Statehood Bill to award the rump district’s extra three electors to whoever wins the national popular presidential vote. That’s clever political mischief at best, a misguided “fix” that would create more problems, would still disrespect the Constitution, and would again be pointless strike-down bait for the Supreme Court. If the electors are chosen by voters nationally, they would not be chosen by the district itself, as the 23rd Amendment commands. The universal understanding when the Amendment was ratified in 1961 was that the District’s presidential electors would be chosen by the voters living there (mostly long-disenfranchised African Americans), as they have been in every election since.

The actual solution to the D.C. statehood problem is elegantly simple, staring us all in the face: Why have any “District” at all? Just make the proposed rump district an ordinary federal enclave within the new state, like the thousands of federal buildings and areas already located in all 50 states. . . . 

05/29/2021

Andrew Kent: Lessons for Bivens and Qualified Immunity Debates from Nineteenth-Century Damages Litigation against Federal Officers
Michael Ramsey

Andrew Kent (Fordham University School of Law) has posted Lessons for Bivens and Qualified Immunity Debates from Nineteenth-Century Damages Litigation against Federal Officers (96 Notre Dame Law Review 1755 (2021)) (34 pages) on SSRN.  Here is the abstract:

This Essay was written for a symposium marking the fiftieth anniversary of the Supreme Court’s decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. As the current Court has turned against Bivens—seemingly confining it to three specific contexts created by Bivens and two follow-on decisions in 1979 and 1980—scholars and litigants have developed a set of claims to respond to the Court’s critique. The Court now views the judicially-created Bivens cause of action and remedy as a separation-of-powers foul; Congress is said to [be] the institution which should weigh the costs and benefits of allowing constitutional tort suits against federal officers for damages, especially in areas like national security or foreign affairs in which the political branches might be thought to have constitutional primacy. Scholarly writing and litigation briefs critical of the Court’s treatment of Bivens now frequently focus on damages suits under common law or general law against American government officers in the early republic, reading them as giving Bivens a quasi-originalist pedigree. This historical writing about officer damages suits claims that courts in the early republic: acted independently of Congress to impose significant restraints on federal officers; protected persons from federal overreach no matter their citizenship and territorial location, and even during wartime; and refused to grant anything like qualified immunity that might have softened the blow of strict personal liability and promoted government efficiency. Common law damages suits against federal officers are said to have remained routinely available until after Bivens was decided when, in the 1988 Westfall Act, Congress barred state-law tort suits against federal officers acting within the scope of their employment.

Through case studies of litigation against federal officers involved in customs enforcement and maritime seizures, this Essay qualifies and revises these claims. In those two contexts, I show that there was substantial political branch endorsement of personal damages liability of federal officers in the early republic, but as material and legal conditions changed over the nineteenth century, Congress moved away from officer suits as a means of ensuring accountability of federal officers and compensation of persons harmed by official illegality. Further, in high stakes contexts for the young republic—wartime prize seizures and peacetime anti-piracy seizures—the Supreme Court did in fact apply immunity doctrines to protect officers and incentivize vigor. Finally, alien enemy disability to sue in U.S. courts during wartime must be acknowledged as a significant limit the protective reach of the officer damages suit. I conclude with thoughts about the implications of this somewhat revised view of the history of damages litigation against federal officers.

05/28/2021

John McGinnis on the Three-Fifths Clause
Michael Ramsey

At Law & Liberty, John McGinnis: What Did the Three-Fifths Clause Really Mean? From the introduction:

The Constitution’s Three-Fifths Compromise, which counted three-fifths of a state’s slave population for purposes of taxation and the apportionment of representatives and presidential electors, was repealed by the Reconstruction Amendments over 160 years ago. Yet it still stirs strong political passions that are unfortunately not matched by knowledge of its genesis, content, or effects.

A few weeks ago, Justin Lafferty, a member of the Tennessee House of Representative, stated that the three-fifths compromise was part of an abolitionist movement to end slavery. Other commentators have denounced the compromise, arguing instead that it was wrong because it denigrated slaves as three-fifths of a person. Both perspectives illustrate the distortions that inevitably occur when history becomes a casualty of our culture wars.

The three-fifths compromise reveals the intricacies of history and the care necessary when critiquing the actions of our forebears. Correctly understood, it reveals that historical events are themselves dependent on their own past and have unforeseen future consequences. And it also shows the importance of considering history counterfactually: there is indeed an argument that the three-fifths compromise ultimately helped end slavery, even if had nothing to do with the abolition movement, because the compromise was necessary to the creation of the union. History can ask normative questions, but only if it is not turned into a simple-minded morality play, where it is assumed that even the best of actors of the past acted only under our current constraints.

And from the conclusion:

Rep. Lafferty’s remarks came in an attack on critical race theory. Supporters of that theory seized on his error to suggest that they showed why critical race theory is needed. But the incident shows nothing of the kind. First, his critics often got their understanding of the three-fifths compromise wrong, not recognizing that fully counting the slaves would have been worse for the cause of ending slavery. Second, while Lafferty was not correct in connecting the clause with abolitionism, the three-fifths compromise was likely one of the compromises needed to create the union, which likely ended slavery faster than the plausible alternatives. Critical race theory, which sees American history as a simple tale of racial subordination, would suppress such analysis. Third, even the three-fifths compromise is far more complex in its effects than can be captured through the prism of race. Critical race theory, like Marxist theories of history, is terribly reductionist. Party lines in history always lead to a flattening of a past’s many dimensions.

Rejecting history as a species of agitprop does not mean we must suspend all moral judgments. Evaluating the historic events of our nation is necessary for the continuity of a community like ours, which depends upon a relation to a shared past. But these judgments also depend on an imaginative sympathy with our forebears and an ability to project ourselves into a world shaped by concepts and confusions not our own. If the history of America becomes a way to project our current polarities on the past, it will become a mirror of our present discontents and a source of disunion.

05/27/2021

A Response to Andrew Hyman re Bostock v. Clayton County
David Weisberg

I would make three points in response to Andrew Hyman’s comment on my recent post re Bostock vClayton County.

First: Mr. Hyman says that the Court’s opinion in Oncale vSundowner Offshore Services leaves it “unclear” as to “what the sexual preferences of [Mr. Oncale’s] harassers were, and it’s also unclear how Oncale would have been treated if he had been a female suspected by those co-workers of being homosexual.”  (How would a court even begin to decide how Mr. Oncale would have been treated if he had been a female suspected by co-workers of being a lesbian?)  Oncale is unclear on these points because they’re all irrelevant to the Court’s decision.  Oncale holds that an employer is required, under Title VII, to provide a workplace free of sexual harassment, whatever the sex or sexual orientation of the victimized employee or the harassing employees.  The issues cited by Mr. Hyman are irrelevant in cases of workplace sexual harassment.

Secondly: Mr. Hyman relies on an argument that Justice Alito makes in his Bostock dissent.  (Alito slip op. 17.)  The argument, in Mr. Hyman’s words, is this: “[I]f an employer has four employees, two males and two females, including one homosexual person of each gender, and the employer only fires the latter two, then obviously that does not indicate any bias or prejudice whatsoever against one sex or the other.”  There are two problems with this argument.

One problem is that the conclusion can’t be reconciled with the conclusion, per the Court’s unanimous decision in Oncale, that if that very same employer permits those very same two homosexual employees to be sexually harassed in the workplace, the result would be two Title VII violations, whether or not the employer has “any bias or prejudice whatsoever against one sex or the other.”  In cases of workplace sexual harassment, the employer’s bias or prejudice (or absence of bias or prejudice) towards a particular sex is entirely irrelevant.  The only relevant factors are (i) how the targeted employee is treated by other employees in the workplace, and (ii) what steps the employer takes to end the harassment.

The other problem with the argument advanced by Justice Alito and Mr. Hyman is that it requires jettisoning well-established precedent relating to discrimination because of an individual’s religion.  Suppose an employer has a hundred employees, fifty Jews and fifty Christians; exactly one of the Jews wears a star of David, and exactly one of the Christians wears a cross.  The employer, who dislikes religious symbols in the workplace, fires the Jew who wears the star of David and the Christian who wears the cross.  Accepting the logic of Justice Alito and Mr. Hyman, the employer’s action does not indicate any bias or prejudice against Christians or Jews.  And they are correct—the employer’s action indicates only a dislike for religious symbols in the workplace.  But the EEOC cites numerous cases where exactly such behavior was deemed to violate Title VII. 

The only conclusion to be drawn is that absence of employer bias or prejudice against Christians or Jews does not guarantee compliance with Title VII.  Where a particular characteristic (wearing a star of David or a cross) is sufficiently closely related to religion, discriminating against those who wear the symbol amounts to discrimination because of the individuals’ religion.  In the same way, where a particular characteristic (having sexual relations with persons of one’s own sex) is sufficiently closely related to sex, discriminating against those who have homosexual relations amounts to discrimination because of the individuals’ sex.  

Thirdly: Nothing in Mr. Hyman’s comment, or in the article by Professors Barnett and Blackman that he cites, or in the two Bostock dissents, offers a plausible reading of Title VII that would provide employees who are or are believed to be homosexual with only some, but not all, of the statute’s protections.  I submit there is no such plausible reading.  More generally, there is no plausible reading of Title VII that would provide any individual who is being discriminated against because of any relevant characteristic—race, color, religion, sex, or national origin—protection against some prohibited forms of discrimination, but not against all prohibited forms of discrimination.  If employees of either sex (including male employees who are or are believed to be homosexual) are entitled under Title VII to a workplace free of sexual harassment, they are equally entitled to all other statutory protections.  Therefore, if Oncale is correct, the result in Bostock is correct (despite the numerous flaws in the latter opinion).        

Harry Litman on Originalism and Expected Applications
Michael Ramsey

In The Atlantic, Harry Litman: Originalism, Divided.  From the introduction: 

Originalism—the idea that the meaning of each provision of the United States Constitution becomes fixed at the time of its enactment—in its contemporary form traces back to the advocacy of a few conservative judges, most prominently Antonin Scalia, in the mid-1980s. At the time, it was a rebel yell. The few self-styled originalists were railing against a long line of judicial precedents, particularly a set of Warren Court rulings that they viewed as mere expressions of liberal policy preferences.

Originalism is now well established, and most of the justices on today’s Supreme Court would express some fidelity to the basic concept. Even Justice Elena Kagan, one of the Court’s more liberal members, said at her confirmation hearing that “we are all originalists” these days. But the concept’s prominence has not provided the clarity some of its early proponents had hoped it would. In fact, fully conceived, originalism does not foreclose but requires the possibility that the provisions of the Constitution are best interpreted to produce “progressive” outcomes.

How is this? Superficially, originalism seems to call for the application of a term’s meaning, frozen from the time of enactment, to a present-day quandary. But this formulation requires an understanding of what, exactly, that meaning is. What is the original meaning of, say, cruel and unusual? Is it the principle those words captured at the time of their adoption, or is it the set of practices that the historical adopters would have considered to be cruel and unusual?

It is not at all clear that the conservative members of the Court today have taken stock of this elementary distinction between what we can call meaning and applications. Very likely, they, and other proud, card-carrying originalists, would reject it out of hand. They would see in the meaning-application distinction the smuggling in of a “living Constitution” that they have strived to bury.

But there is no getting around it, and the constitutional cases that will come before the Court in the next few terms are likely to tease it out.

A forceful and scholarly essay, but it depends heavily on the proposition that the result in Brown v. Board of Education cannot be defended other than by an evolving understanding of "equal protection":

Not only did the legislators who enacted the Fourteenth Amendment not expect that it would mandate desegregated public schools, but neither did society at large—Scalia’s “normal speakers of English.” There is no particular reason to believe that mid-19th-century elected representatives’ views of what equality required were distinct from the public’s. So the disavowal of the framers’ subjective expectations can’t itself anchor an originalist defense of Brown. For that, as the UCLA professor Mark Greenberg and I have argued, you need a distinction between the semantic meaning of provisions—roughly their dictionary definition—and the ways that a speaker or a society applies them. Otherwise put, between original meaning and original applications. The Fourteenth Amendment requires equal protection of the laws. For legislators—and citizens and judges—in 1865 [ed.: 1868], that principle didn’t mandate integrated schools; for Americans in 1965, it did.

I'm not sure that's right (though I'm not enough of a Fourteenth Amendment scholar to say it's wrong).  Still, it seems that the idea that segregation violated the Amendment's guarantees was at least part of the intellectual debate at the time.  Plessy v. Ferguson was not obviously right as a matter of original meaning.  Indeed, I'm inclined to think it was wrong.  And if it was, I'm not sure what's left of this essay.

More generally, there seem to be two narratives about the Amendment's ratification and aftermath.  One (reflected in this essay) is that no one thought the Amendment barred segregation, so originalism's effort to attack Plessy and defend Brown is doomed.  But another is that the post-1868 Supreme Court -- like Northern white society as a whole -- in the face of overwhelming Southern resistance turned its back on the true meaning of the Amendment, and failed to carry through on the Amendment's promises.  I'm not sure which of these is right, but they can't both be.

(Thanks to Andrew Hyman for the pointer.)

ANDREW HYMAN adds:

Regarding Plessy, it seems to me that Louisiana's Separate Car Act of 1890 violated federal statutory language, e.g. guaranteeing (in the Civil Rights Act of 1866 that was still on the books in the 1890s) that black people “shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” If a black person is penalized for sitting in a certain train car, but a white person isn’t, then it’s kind of hard (probably impossible) to reconcile that racist state law with the federal statute.

05/26/2021

New Book: "The Decline of Natural Law" by Stuart Banner
Michael Ramsey

Recently published, by Stuart Banner (UCLA): The Decline of Natural Law - How American Lawyers Once Used Natural Law and Why They Stopped (Oxford University Press 2021).  Here is the book description from the publisher:

An account of a fundamental change in American legal thought, from a conception of law as something found in nature to one in which law is entirely a human creation.

Before the late 19th century, natural law played an important role in the American legal system. Lawyers routinely used it in their arguments and judges often relied upon it in their opinions. Today, by contrast, natural law plays virtually no role in the legal system. When natural law was part of a lawyer's toolkit, lawyers thought of judges as finders of the law, but when natural law dropped out of the legal system, lawyers began thinking of judges as makers of the law instead.

In The Decline of Natural Law, the eminent legal historian Stuart Banner explores the causes and consequences of this change. To do this, Banner discusses the ways in which lawyers used natural law and why the concept seemed reasonable to them. He further examines several long-term trends in legal thought that weakened the position of natural law, including the use of written constitutions, the gradual separation of the spheres of law and religion, the rapid growth of legal publishing, and the position of natural law in some of the 19th century's most contested legal issues. And finally, he describes both the profession's rejection of natural law in the late 19th and early 20th centuries and the ways in which the legal system responded to the absence of natural law.

The first book to explain how natural law once worked in the American legal system, The Decline of Natural Law offers a unique look into how and why this major shift in legal thought happened, and focuses, in particular, on the shift from the idea that law is something we find to something we make.

Via Dan Ernst at Legal History Blog.

05/25/2021

Evan Bernick: Eliminating Constitutional Law
Michael Ramsey

Evan D. Bernick (Georgetown University Law Center) has posted Eliminating Constitutional Law (33 pages) on SSRN.  Here is the abstract:

A growing number of constitutional scholars are resting arguments for interpretive methodologies on claims about the nature of law. The most prominent and influential of these arguments is a positivist argument for originalism; other arguments draw upon the natural-law tradition. These scholars have clarified their positions but haven't abandoned them.

This Essay contends that they should. Methodological prescriptions to constitutional decisionmakers stand in need of moral justification, and theories of what law-as-such or “constitutional law” are don't fit the bill. Legality doesn't carry moral weight, regardless of whether positivism or nonpositivism is true. Accordingly, analytical economy and clarity counsel in favor of eliminativism—the view that we can and should do without the concept of law—in important domains of normative constitutional theory and constitutional practice.

What’s the alternative? All things morally relevant—including moral goods associated with law—should be weighed together in making methodological choice. “It’s the law” can't underwrite originalism or common-law constitutionalism or Dworkinism or anything else. Theories of law may, however, be useful in identifying the moral goods that should factor into interpretive choice, as well as in guiding “retail” constitutional decisionmaking in individual cases.

Via Larry Solum at Legal Theory Blog, who says: "An important paper.  Highly recommended.  Download it while it's hot!"

05/24/2021

Guha Krishnamurthi: The Failure of the Newest Originalism
Michael Ramsey

Recently published, in the BYU Law Review: Guha Krishnamurthi (South Texas), False Positivism: The Failure of the Newest Originalism (46 BYU L. Rev. 401 (2021)). Here is the abstract: 

Originalism is a juggernaut. It pervades our constitutional discourse, and it has become a fort and font of constitutional legitimacy. A number of our most prominent jurists and legal thinkers are self-described originalists and, in myriad constitutional cases, originalist argumentation demands our serious attention. Notwithstanding, originalists have struggled to forge any meaningful consensus on the most foundational issues. Among the serious problems, originalist theories have each struggled to navigate between preserving core features and fixed stars of our law and remaining a distinctive theory with  fidelity to“original meaning.”

The newest effort in this struggle is the so-called “positive” turn in originalism. Positivist originalism seeks to refocus constitutional interpretation from normative questions—about morality, linguistics, interpretation, and authority—to what the law actually is, as embodied by our legal practice. This focus, we are told, comes from H.L.A. Hart’s legal positivism—a theory of law based on social facts and the actual behavior of officials in the legal system. The resulting positivist originalism—which contends that our law includes the original precepts and methods of the founding era—promises to provide historical and empirical conditions for the validation of our law, without appeal to theoretical questions about the law.

The project of positivist originalism fails. I proffer four criticisms of positivist originalism: First, positivist originalism’s commitments contravene key insights of legal positivism. Second, positivist originalism, and its real-world formulation called original-law originalism, do not actually describe our practice of law (or do so trivially). Third, the methodology of positivist originalism cannot sustain its conclusion, in light of the facts that our obligation to follow the law is at best qualified and because there are equally good competing theories describing our law. Fourth, beyond these internal flaws, positivist originalism fails to solve any of the problems that have continually plagued the originalist enterprise. Thus, the project of positivist originalism cannot fulfill its aims and is unlikely to do so without appealing to the very theoretical questions it was devised to avoid.