False Positivism: The Failure of the Newest Originalism

Originalism is a juggernaut. It pervades our constitutional discourse and it has become a fort and font of constitutional legitimacy. A number of our most prominent jurists and legal thinkers are self-described originalists and, in myriad constitutional cases, originalist argumentation demands our serious attention. Notwithstanding, originalists have struggled to forge any meaningful consensus on the most foundational issues. Among the serious problems, originalist theories have each struggled to navigate between preserving core features and fixed stars of our law and remaining a distinctive theory with fidelity to original meaning. The newest effort in this struggle is the so called positive turn in originalism. Positivist originalism seeks to refocus constitutional interpretation from normative questions — about morality, linguistics, interpretation, and authority — to what the law actually is, as embodied by our legal practice. This focus, we are told, comes from H.L.A. Hart\u27s legal positivism — a theory of law based on social facts and the actual behavior of officials in the legal system. The resulting positivist originalism — which contends that our law includes the original precepts and methods of the founding era — promises to provide historical and empirical conditions for the validation of our law, without appeal to theoretical questions about the law.The project of positivist originalism fails. I proffer four criticisms of positivist originalism: First, positivist originalism\u27s commitments contravene key insights of legal positivism. Second, positivist originalism, and its real-world formulation called original-law originalism, do not actually describe our practice of law (or do so trivially). Third, the methodology of positivist originalism cannot sustain its conclusion, in light of the facts that our obligation to follow the law is at best qualified and because there are equally good competing theories describing our law. Fourth, beyond these internal flaws, positivist originalism fails to solve any of the problems that have continually plagued the originalist enterprise. Thus, the project of positivist originalism cannot fulfill its aims and is unlikely to do so without appealing to the very theoretical questions it was devised to avoid