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01/11/2022

Mitchell Berman Responds to Stephen Sachs' Article "Originalism: Standard and Procedure"
Michael Ramsey

Mitchell N. Berman (University of Pennsylvania Carey Law School) has posted Keeping Our Distinctions Straight: A Response to “Originalism: Standard and Procedure” (Harvard Law Review Forum (forthcoming 2022)) (17 pages) on SSRN.  Here is the abstract:

For half a century, moral philosophers have distinguished between a “standard” that makes acts right and a “decision procedure” by which agents can determine whether any given contemplated act is right, which is to say whether it satisfies the standard. In “Originalism: Standard and Procedure,” Stephen Sachs argues that the same distinction applies to the constitutional domain and that clear grasp of the difference strengthens the case for originalism because theorists who emphasize the infirmities of originalism as a decision procedure frequently but mistakenly infer that those flaws also cast doubt on originalism as a standard. This invited response agrees that the basic distinction Sachs highlights is important, but argues that it’s already well understood in the constitutional theory literature under different labels, such as the familiar distinction between theories of legal content and of adjudication, and the less familiar distinction between “constitutive” and “prescriptive” theories of constitutional interpretation. It argues further that, nomenclature aside, the distinction does not lend originalism the support that Sachs claims for it because we remain without good reason to believe that originalism is our constitutional standard.

Professor Sachs' article Originalism: Standard and Procedure, one of the most downloaded originalism articles of 2021, was published in the current issue of the Harvard Law Review (135 Harv. L. Rev. 777 (2022)).

I agree with Professor Berman's comment that we need "good reason to believe that originalism is [or, I would say, should be] our constitutional standard" but I think there are some good reasons.