This Essay provides a new framework for criticizing originalism or its alternatives --- the framework of positive law. Existing debates are either conceptual or normative: They focus either on the nature of interpretation and authority, or on originalism’s ability to serve other values, like predictability, democracy, or general welfare. Both sets of debates are stalled. Instead, we ought to ask: Is originalism our law? If not, what is? Answering this question can reorient the debates and allow both sides to move forward. If we apply this positivist framework, there is a surprisingly strong case that our current constitutional law is originalism. First, I argue that originalism can and should be understood inclusively. That is, it permits doctrine like precedent if those doctrines can be justified on originalist grounds. Second, I argue that our current constitutional practices demonstrate a commitment to inclusive originalism. In Supreme Court cases where originalism conflicts with other methods of interpretation, the Court picks originalism. By contrast, none of the Court’s putatively anti-originalist cases in fact repudiate originalist reasoning. These judicial practices are reinforced by a broader convention of treating the constitutional text as law and its origin as the framing. So while constitutional practice might seem, on the surface, to be a pluralism of competing theories, its deep structure is in fact a nuanced form of originalism.Third, I suggest that originalism’s positive legal status has important normative implications for today’s judges. Judges promise to follow the law, and their judicial authority is premised on the assumption that they do. So if an inclusive version of originalism is the law, judges ought not be the ones to change it. Courts ought to privilege our current legal conventions over academic theories that are anti-originalist and against narrower forms of originalism as well.

The Roberts Court: The Struggle for the Constitution

Is Originalism Our Law

Researchers often study the impact of legal change by investigating judges’ decisions and ignoring litigants. Many scholars believe the Supreme Court’s decisions in Twombly and Iqbal increa...

Judicial Impact and Factual Allegations

/pdf/friendly-fire-amicus-curiae-participation-and-impact-at-the-4mncfmrb4k.pdf

Friendly Fire: Amicus Curiae Participation and Impact at the Roberts Court

Recently, scholars have developed and debated an account of the U.S. Supreme Court’s First Amendment freedom of expression agenda that connects the ideological identity of the speaker to the justic...

Rethinking the Assignment of Ideological Direction: Concept Measurement in Modern U.S. Supreme Court Free Expression Decisions

This article considers the organizations, financial patrons, and lawyers involved in two significant campaign finance cases decided by the Roberts Court: Citizens United v. Federal Election Commission and McCutcheon v. Federal Election Commission. The research indicates that these elements of the support structures for litigation on both sides of these cases, like the justices to whom they direct their advocacy, fall into well-defined opposing and partisan camps. It also suggests that strategic case selection on the challengers' side, the diversity of organizations supporting their positions, their network and coordination, and a simple and powerful frame around which to rally may have contributed to their success and to the Roberts Court's fundamental reshaping of campaign finance doctrine.

The Roberts Court: The Struggle for the Constitution

Citations

Is Originalism Our Law

Judicial Impact and Factual Allegations

Friendly Fire: Amicus Curiae Participation and Impact at the Roberts Court

Rethinking the Assignment of Ideological Direction: Concept Measurement in Modern U.S. Supreme Court Free Expression Decisions

Elements of the Support Structure for Campaign Finance Litigation in the Roberts Court

Related Papers (5)

The Roberts Court and the Future of Constitutional Law

Center of Order: Chief Justice John Roberts and the Coming Struggle for a Respected Supreme Court

The Supreme Court and the Struggle for Judicial Independence, 1860-1873

Politics, the Constitution, and the Warren Court

The Indiana Supreme Court and the Struggle Against Slavery