Sachs on Originalism as a Theory of Legal Change

Stephen E. Sachs, Duke University School of Law, has posted Originalism as a Theory of Legal Change, which is forthcoming in the Harvard Journal of Law and Public Policy.  Here is the abstract:    

Originalism is usually defended as a theory of interpretation. This Article presents a different view. Originalism ought to be defended, if at all, not based on normative goals or abstract philosophy, but as a positive theory of American legal practice, and particularly of our rules for legal change.

One basic assumption of legal systems is that the law, whatever it is, stays the same until it's lawfully changed. Originalism begins this process with an origin, a Founding. Whatever rules we had when the Constitution was adopted, we still have today -- unless something happened that was authorized to change them, under the rules as they stood at the time. We require claims of constitutional change to provide this kind of historical accounting; and a wide variety of approaches -- "conservative" and "liberal," from precedent to post-Founding practice -- are and could be defended as products of the Founders' law. These practices show an implicit commitment to a deeply originalist premise: that our law today consists of their law, the Founders' law, plus any lawful changes.

If this account is right, then what's important about the Constitution isn't what its text said, but what its enactment did--what it contributed to American law at the Founding, as preserved to the present day. Rather than look to original intentions, original public meaning, and so on, we should look to the original law--the law that was added by the enactment of each provision, under the legal rules governing interpretation at the time. This "original-law originalism" helps us to understand, and hopefully to resolve, longstanding constitutional debates: originalists and nonoriginalists ought to disagree about today's law, while different schools of originalists ought to disagree about the law of the past.

The claim that we still take the Founders' law as our own, as lawfully changed, is a claim about current society; it might be true or false. This Article merely argues that, if it is true, it's the best reason to be an originalist -- and, if it's false, the best reason not to.