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Full-Text Articles in Law
Grounding Originalism, William Baude, Stephen E. Sachs
Grounding Originalism, William Baude, Stephen E. Sachs
Faculty Scholarship
How should we interpret the Constitution? The “positive turn” in legal scholarship treats constitutional interpretation, like the interpretation of statutes or contracts, as governed by legal rules grounded in actual practice. In our legal system, that practice requires a certain form of originalism: our system’s official story is that we follow the law of the Founding, plus all lawful changes made since.
Or so we’ve argued. Yet this answer produces its own set of questions. How can practice solve our problems, when there are so many theories of law, each giving practice a different role? Why look to an official …
Originalism And The Law Of The Past, William Baude, Stephen E. Sachs
Originalism And The Law Of The Past, William Baude, Stephen E. Sachs
Faculty Scholarship
Originalism has long been criticized for its “law office history” and other historical sins. But a recent “positive turn” in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law — which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders’ law, unless lawfully changed.
This theory has three important implications for the role of history in law. First, whether and how past law matters today is a question of current law, not of …
Bans, Joseph Blocher
Bans, Joseph Blocher
Faculty Scholarship
In the universe of legal restrictions subject to judicial review, those characterized as fully denying some aspect of a constitutional right—bans—are often subject to per se rules of invalidity. Whether the subject of the restriction is a medium of expression, the valuable use of property, or a class of weapons, courts in such cases will often short-circuit the standard doctrinal machinery and strike down the law, even if it might have survived heightened scrutiny. Identifying laws as bans can thus provide an end run around the tiers of scrutiny and other familiar forms of means-ends analysis.
And yet it is …