The Columbia Law Review has at last published Will Baude’s thought provoking essay Is Originalism Our Law?, which is the latest entry into what has been called the “positive turn” in originalist theory.   Baude and Stephen Sachs have been the primary movers in this effort, which offers a new normative justification for originalism: Judges are bound to enforce the original meaning of constitutional text because that meaning is, in a positivist sense, “the law.” Originalists have long struggled to provide good reasons why the Court ought to care about original meanings, and until recently I think those efforts have come up a little short. Early originalists simply presumed that original meanings were “the law,” but failed to justify that claim in any rigorous theoretical way. Thus, the New Originalists no longer claim that original meanings are the “law” (these meanings establish the text’s “communicative content,” not its “legal content”) and instead justify originalism as the best theory of adjudication for particular instrumental ends. Sachs and Baude make a new claim, which is that Supreme Court practice—as the actions of relevant legal officials—evince a rule of recognition that identifies original meanings as our positive constitutional law.   If this is true, of course, judges ought to enforce original meanings for all the reasons they ought to follow the law writ large.

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