William Baude on Originalism and the Positive Turn

Originalism and the Positive Turn

For more than a decade, the “New Originalism” has been identified with a focus on the Constitution’s original meaning (not its original intent) and with the admission that original meaning won’t perfectly constrain judges. Steven Smith challenges that version of originalism. The challenge should be rejected, but in the course of rejecting it we may better understand a new development in the new originalism: the positive turn, or thinking of originalism as our law.

The new originalism has long faced two different kinds of critics: the external and the internal. The external critics are not originalists at all. Some of them simply reject all forms of originalism, but many instead argue that the new originalism is inferior to the old one. The old originalism, they say, at least had the courage of its convictions. “At least we were arguing about something!” these critics might cry. “Now, I don’t know what the debate is about anymore!”

Originalists themselves often mistrust these external critics. After all, those who are unsympathetic to a philosophy often have bad judgment about what are the best parts of that philosophy. Other external critics may not have kept with originalism’s development.

New originalism also has internal critics. The internal critic continues to adhere to, or at least sympathize with, the “old” originalism. This critic’s worry is that an originalism that yearns to be too flexible or too popular may lose whatever it was that made originalism good in the first place.

In recent years, Steven Smith has become the most important internal critic, as his Liberty Law Forum essay continues to show. Smith argues that it is time for originalists to do away with “original meaning.” Meaning is too manipulable, he says, too easily detached from the actual goals of the original enactors. We should instead look for what he calls the “original decision.”

I disagree, for reasons that are simultaneously narrow and deep.

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