Monday, October 24, 2016

Baude and Sachs on Originalism's Bite

William Baude, University of Chicago Law School, and Stephen E. Sachs, Duke University School of Law, have posted Originalism's Bite which is forthcoming in Green Bag 2d:
Is originalism toothless? Richard Posner seems to think so. He writes that repeated theorizing by "intelligent originalists," one of us happily included, has rendered the theory "incoherent" and capable of supporting almost any result. We appreciate the attention, but we fear we've been misunderstood. Our view is that originalism permits arguments from precedent, changed circumstances, or whatever you like, but only to the extent that they lawfully derive from the law of the founding. This kind of originalism, surprisingly common in American legal practice, is catholic in theory but exacting in application. It might look tame, but it has bite.
H/T: Legal Theory Blog

1 comment:

Shag from Brookline said...

Alas, as originalism continues to evolve from its original intent, through several variations, sometimes forward, sometimes back, the term originalism has become more of a sound byte as it gums through its evolving/revolving theories. And with the demise of Justice Scalia only Justice Thomas on the current Court of eight proclaims himself as an originalist. The description of originalism in the abstract is close to that of non-originalism.