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Faculty Scholarship

Duke Law

Jurisprudence

2016

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Originalism’S Bite, William Baude, Stephen E. Sachs Jan 2016

Originalism’S Bite, William Baude, Stephen E. Sachs

Faculty Scholarship

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 ...