Abstract

If our law requires originalism in constitutional interpretation, then that would be a good reason to be an originalist. This insight animates what many have begun to call the "positive turn" in originalism. Defenses of originalism in this vein are "positive" in that they are based on the status of the Constitution, and constitutional law, as positive law. This approach shifts focus away from abstract conceptual or normative arguments about interpretation and focuses instead on how we actually understand and apply the Constitution as law. On these grounds, originalism rests on a factual claim about the content of our law: that we regard the framers' law, and any other further lawful changes, as our law today. If we do not, originalism is not the law and perhaps should be abandoned in favor of what is.

The Article proceeds as follows. Part I outlines the positive turn in originalism, one of the most important and promising developments in originalist theory in recent years. After noting the approach's benefits, we offer jurisprudential objections to its foundations. Part II explains how the positive turn's appealing form of originalism is better grounded in a broader understanding of the moral point of constitutions. Far from being a musty, sectarian artifact, the classical natural law tradition of reasoning about positive law's moral purpose animated the framers' understanding of our Constitution and provides the most persuasive reason for continued adherence to that original law today. Part III addresses the difficulties that today's nonoriginalist practices present to one normatively committed to original law, while also explaining why the appeal of originalism endures in the face of those challenges.

Document Type

Article

Publication Date

2017

Comments

Co-authored with Jeffrey A. Pojanowski, Professor of Law at University of Notre Dame.

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