IS ORIGINALISM OUR LAW?

• Published in: Columbia law review Vol. 115; no. 8; pp. 2349 - 2408
• Main Author: Baude, William
• Format: Journal Article
• Language: English
• Published: New York Columbia Law School 01.12.2015; Columbia Law Review Association, Inc
• Subjects: Attorneys; Congresses and conventions; Constitutional amendments; Constitutional conventions; CONSTITUTIONAL LAW; Constitutions; Courts; Debates and debating; ESSAY; Fourteenth Amendment; Interpretation and construction; Judges; Judges & magistrates; JUDGMENTS; Judicial precedent; JUDICIARY; Jurisprudence; Law; Legal practice; Methods; Normativity; Originality; Pluralism; Reasoning; Rule of law; Social aspects; Social privilege; SOVEREIGNTY; U.S. states; United States constitutional law; Values; UNITED STATES
• ISSN: 0010-1958; 1945-2268

This Essay provides a new framework for criticizing originalism or its alternatives—the framework of positive law. Existing debates are either conceptual or normative: They focus either on the nature of interpretation and authority, or on originalism's ability to serve other values, like predictability, democracy, or general welfare. Both sets of debates are stalled. Instead, we ought to ask: Is originalism our law? If not, what isi Answering this question can reorient the debates and allow both sides to move forward. If we apply this positivist framework, there is a surprisingly strong case that our current constitutional law is originalism. First, I argue that originalism can and should be understood inclusively. That is, it permits doctrine like precedent if those doctrines can be justified on originalist grounds. Second, I argue that our current constitutional practices demonstrate a commitment to inclusive originalism. In Supreme Court cases where originalism conflicts with other methods of interpretation, the Court picks originalism. By contrast, none of the Court's putatively anti-originalist cases in fact repudiate originalist reasoning. These judicial practices are reinforced by a broader convention of treating the constitutional text as law and its origin as the framing. So while constitutional practice might seem, on the surface, to be a pluralism of competing theories, its deep structure is in fact a nuancedform of originalism.