Originalism as a theory of legal change.

AuthorSachs, Stephen E.
PositionIntroduction through II. Originalism as the Founders' Law B. Originalism and Legal Change 1. The Rules at the Founding, p. 817-852

INTRODUCTION I. ORIGINALISM AND POSITIVE LAW A. Normative Defenses of Originalism 1. Originalism as a Good Idea 2. Originalism as Law Reform B. Conceptual Defenses of Originalism 1. What Interpretation Can't Do 2. Interpretation and Theories of Jurisprudence C. Positive Arguments for Originalism II. ORIGINALISM AS THE FOUNDERS' LAW A. Two Kinds of Legal Change 1. Authorized Change 2. Unauthorized Change 3. Combining the Two B. Originalism and Legal Change 1. The Rules at the Founding a. Incorporating Past Law b. Incorporating the Founders' Law 2. Changes Since the Founding a. Rules and Outcomes b. The Founders' Rules of Change c. Domesticating Doctrines d. Stare Decisis 3. Originalism as Exclusive Law a. Premises of Legal Argument b. Addressing the Alternatives i. Multiple Foundings ii. Multiple Sources III. ORIGINAL-LAW ORIGINALISM A. Original Law and Original Meaning 1. Interpretation and Legal Rules 2. The Substance of Interpretive Rules 3. What Originalists Can Disagree About B. Addressing Objections 1. Was There Any Law? 2. The Founders' Law and Constraint IV. ORIGINALISM AND HISTORY CONCLUSION INTRODUCTION

Originalism is usually called a theory of interpretation, a particular way to read a text. Best understood, though, originalism is much more than that. It's a theory of our law: a particular way to understand where our law comes from, what it requires, and how it can be changed.

This view starts with a common assumption of legal systems, that the law stays the same until it's lawfully changed. A statute that's hundreds of years old can still be good law today, simply because it was properly enacted at some earlier time and has never been amended or repealed. If you start with an old statute book and add everything enacted since, you should end up with the code as it stands today.

To an originalist, what's true of old statutes is also true of our old Constitution, and indeed of our old law generally. Whatever rules of law we had at the Founding, we still have today, unless something legally relevant happened to change them. Our law happens to consist of their law, the Founders' law, including lawful changes made along the way. Preserving the meaning of the Founders' words is important, but it's not an end in itself. It's just a means to preserving the content of the Founders' law.

Not everyone agrees with this picture, of course; not even all "originalists." People use the word "originalism" in lots of different ways. But treating originalism as a claim about law, not just interpretation, gets us past some of the debates that have occupied the field--and it helps us see the way to more fruitful areas for agreement.

At the moment, most defenses of originalism fall into two camps, which we can call "normative" and "conceptual." Normative defenses portray certain interpretive methods as good ideas (because they constrain judges, promote democracy, and so on). These defenses might be right or wrong; more importantly, the good ideas they defend might not be reflected in our law. Maybe American law, as it currently exists, doesn't constrain judges or promote democracy as much as it ought to. If originalism is just a law reform project, it loses much of its rhetorical force. Conceptual defenses, by contrast, start from incontestable legal assumptions (say, that the Constitution is law). They then argue, on philosophical grounds, that the Constitution's meaning just is its original meaning (intention, understanding, public meaning, etc.). But the law doesn't have to reflect good philosophy any more than good policy. So it might be that our legal system, like Canada's or France's, reads our constitutional text some other way or incorporates some other sources of law.

In other words, to know what to make of these defenses, we need to know whether (and to what extent) originalism is already part of American law. This inquiry points the way toward what we could call "positive" defenses--claims that originalism, as a matter of social fact and legal practice, is actually endorsed by our positive law. In academic circles, positive defenses are relatively rare; indeed, they're almost unheard of. One prominent originalist recently argued that "[n]o one, as of yet, has made a strong case for concluding the original meaning is the law"--or has "even tried [to do so] in an extended article." (1)

This Article tries to fill that gap. Modern originalism may have gotten its start by critiquing, not affirming, everyday legal practice. But these critiques were founded on deeper features of American constitutional law--which is why they accused judges and other officials of departing from the law rather than following it. What matters for our understanding of the law isn't just everyday practice, but the premises that are implicit in our legal arguments, the claims about the structure of our law that we're willing publicly to accept and defend. At that level, there's a clear originalist strain in our legal thought, one best captured by viewing originalism as a theory of legal change.

American constitutional law cares about genealogy. One useful way of getting at the nature of a constitutional challenge is to ask about the challenged practice, "When do you think it became unconstitutional?" (2)--with the range of acceptable answers stretching from the Founding through yesterday. If the law was X at the Founding but is supposed to be Y today, the natural follow-up question is what happened in between--and why whatever happened (an amendment, a statute, a shift in custom or usage) was legally capable of making that change. Almost every legal system distinguishes authorized changes like these from the unauthorized changes that happen when society simply abandons or departs from some preexisting rule of law. But a distinctive feature of the American legal system is that it fixes a particular starting date--an origin, a Founding--separating the changes that don't need legal authorization from those that do. Americans don't think that we're living in a Fifth Republic, the way the French do, but rather in the same Republic we started with.

This intuition is the core of originalism, viewed as a theory of legal change. What originalism requires of legal change is that it be, well, legal; that it be lawful, that it be done according to law. This is a requirement of procedure, not substance. It makes originalism a "big tent," potentially allowing a wide variety of legal changes (judicial precedents, liquidation by practice, and so on) depending on how the law stood at the time. The originalist claim is that each change in our law since the Founding needs a justification framed in legal terms, and not just social or political ones. To put it another way, originalists believe that the American legal system hasn't yet departed (even a little bit) from the Founders' law in the way that the colonies threw off the British yoke or the states got rid of the Articles of Confederation. If this sounds implausible to you, then that may be a perfectly good reason not to be an originalist. But this Article suggests that it may be more plausible than you think.

This theory also produces a version of originalism that might be particularly attractive to those who already consider themselves originalists. What's important about the Constitution of 1788 isn't what it said, but what it did: the legal rules it added to the American corpus juris, the contribution (to use Mark Greenberg's phrase) it made to the preexisting body of law. (3) Whatever the Constitution added to the law, it added at the time of its enactment. To find out the law that the Constitution made, the relevant way to read the document's text would be according to the rules of the time, legal and otherwise, for turning enacted text into law. If that version needs a label, we could call it "originallate originalism": the view that the Constitution should be read according to its original legal content, whatever that might have been. (Why else look to the text, if not to find the law that it produced? Why be more "originalist" than the Founders, or more Catholic than the Pope?) Viewed in these terms, debates between originalists and nonoriginalists are really positive debates about the sources of our current law; disputes among different schools of originalists are really historical disputes about the content of the law at the Founding.

Thinking about originalism this way helps redefine the relationship between law and history. If originalism is based on our rules for legal change, then it isn't just about recovering the meaning of ancient texts, a project for philologists and historians. Instead, it's about determining the content of our law, today, in part by recovering Founding-era doctrine. That means learning some history, but it also means exercising legal judgment, the kind we hire lawyers for. (In the same way, if we want to learn the law of some foreign country, we ask lawyers with relevant expertise, not just ethnographers or sociologists.) Doing originalist research requires some specialized techniques, but so does chasing down an old chain of title. As a theory of legal change, originalism is just ordinary lawyer's work.

This Article isn't intended as a once-and-for-all defense of originalism, much less this original-law version thereof. Instead, the goal is simply to clear away some theoretical underbrush, sketching out the different positions, and hopefully pushing scholars toward more productive areas of debate. Both originalists and nonoriginalists need to show their jurisprudential cards. Is our law really the Founders' law? If not, how is it different? When did the two diverge, and do we accept that divergence all the way down? To be a nonoriginalist, on this Article's view, is to say of some new rule: "Maybe Rule X wasn't lawfully adopted; maybe it can't be defended under preexisting law; but I'm okay with that, and so is America." Originalists can say that...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT