Quentin Fischer * | 25.3 | Comment | Citation: Quentin Fisher, Comment, Articulating Our Law: Some Remarks on Baude and Sachs, 25 U. Pa. J. Const. L. 688 (2023).

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In a recent series of articles, William Baude and Stephen E. Sachs have defended originalism on positivist grounds.1 Originalism is the correct theory of constitutional interpretation, they claim, because our law is originalist. If our law is originalist, then originalism is true (for us) neither because of a conceptual truth about written constitutions (e.g., that writtenness implies originalism), nor because of normative considerations (e.g., originalism successfully curbs judicial subjectivity). Rather, originalism is true in virtue of our positive law. Baude and Sachs argue that reflection on our current constitutional practices demonstrates a commitment to a specific version of originalism—what they call inclusive originalism. From a positivist perspective, to ask whether originalism is true just is to ask whether, as an empirical matter, our practices demonstrate a commitment to originalism.

This positive turn is a welcome shift in contemporary jurisprudence. It is part and parcel of a general turn towards “constitutive” theorizing in constitutional law—namely, theorizing about what makes it the case that constitutional norms have the content they do. As theorists across the ideological spectrum have observed, a potentially fruitful strategy for resolving first-order constitutional questions is by reflection on general jurisprudence. If we can get clear on what makes it the case that constitutional propositions have the content that they do, that may help us think through concrete constitutional cases. Baude and Sachs extend this general project. Their jurisprudence is, they claim, positivism, of a Hartian variety. Originalism is the correct interpretive method because it is, simply, our positive law.

Important to any constitutional positivism—originalist or otherwise—is what I will call the practice-constraint principle. It states, generally: our judgments about “what is the correct constitutional theory are themselves answerable to, and informed by, any considered judgments we may have about the legally correct resolution of concrete constitutional disputes.” Like most positivists, Baude and Sachs explicitly endorse a version of the practice-constraint principle. This is for good reason. The practice-constraint principle codifies the positivist intuition that our legal norms are sensitive to and reflective of our particular judgments within legal practice. In Section II I attempt to motivate and defend the practice-constraint principle. I argue that a correct understanding of the practice-constraint principle casts serious doubt on aspects of Baude and Sachs’s positivist account of inclusive originalism. On my account, Baude and Sachs violate the practice-constraint principle at the ground level of their account. According to Baude and Sachs, originalism is our law is an empirical proposition. However, the practice-constraint principle, correctly understood, shows that there can be no strict separation of the empirical and the normative in questions concerning the general content of legal social practices.

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* J.D., Class of 2023, University of Pennsylvania Law School.