Stephen E. Sachs (Harvard Law School) has posted Is and Ought in Constitutional Law: A Response to Joel Alicea (Harvard Journal of Law and Public Policy, Volume 48, No. 1, Pp. 345-359 (2025)) on SSRN. Here is the abstract:
Does originalism need a moral defense? To choose one method of interpretation over another, some argue, is an action: it affects how judges and officials will affect the real world. So interpretive choices might have to be justified the way actions are justified, namely on moral grounds.
These action-focused arguments prove too much. Just as a choice to say the Earth goes around the Sun is usually justified by whether or not it really does, a choice to say that the law provides thus-and-so is usually justified by whether it really so provides, not on the moral benefits of it so providing. Constitutional texts don't just fall in our laps like manna from heaven, to be put to whatever uses might seem best; they often emerge from a process of enactment, with their content already determined in light of an existing legal system. The moral case for originalism, such as it is, rests on its being true: originalism really is the law around here, and judges and officials should say so.
Highly recommended.
This piece responds to Joel Alicea's Vaughn Lecture, The Natural Law Moment in Constitutional Theory. Alicea replies to Sachs in Originalism and Truth-Telling: A Reply to Stephen Sachs. This exchange is important and worth reading in full.
An in-depth analysis of the issues raised by Alicea and Sachs would go far beyond the scope of a blog post, but it is worth noting that Sachs's argument depends on the contestable proposition that originalism is required by the positive law--in other words that either the rule of recognition itself or other legal norms (that are recognized as law by the rule of recognition) make it unlawful for courts and other institutions to act contrary to originalism. Whatever the rule of recognition in the United States actually is, it is going to be difficult for Sachs to make out the case that it requires originalism and does not recognize nonoriginalist Supreme Court decisions are creating valid legal norms. It will be especially difficult because officials seem to treat nonoriginalist Supreme Court decisions as lawful in the same way that they treat originalist Supreme Court decisions as lawful. But this does not entail that originalist Supreme Court decisions are unlawful. Instead, the implications of the fact on the ground is that the Supreme Court can render either originalist or nonoriginalist decisions--given the current rule of recognition. Originalists argue that within the range of choice that the Supreme Court has, it should render originalist decisions. Thus, the Constraint Principle, which holds that constitutional actors should regard the original meaning of the constitutional text as binding, is justified by normative arguments. Originalist can go further and argue that the rule-of-recognition should change, and that officials should eventually come to regard Supreme Court decisions that disregard original meaning as unlawful. In a world where that happened, then Sachs would be right to claim that the Supreme Court would regard itself as legally required to adhere to the Constraint Principle.
Notice, however, that if Sachs is right and that the case for the Supreme Court following originalism rests on his claim that originalism is legally required, then it follows that if the current rule of recognition affords legal status to nonoriginalist Supreme Court decisions, then the case for originalism fails.
All of this is complicated by the fact that Sachs's version of originalism, original law originalism, holds that what is binding is not the original public meaning of the constitutional text but is, instead, the content of the original law as of some date (1789?). The original law remains in force unless it is changed via some mechanism that itself was authorized by the original law. Assuming the rule of recognition today is the same as the rule of recognition in 1789, that claim is a tautology. But precisely because it is a tautology, it isn't very helpful in determining what judges are legally required to do with respect to the original meaning of the constitutional text. For example, if the Supreme Court's Noel Canning departed from the original public meaning of the constitutional text, it might nonetheless be legally valid if it relied on a change mechanism that is lawful and adjustments to constitutional norms based on historical practice might itself be such a change mechanism.
One final thought: the correctness of Sachs's view may depend on the question whether the rule of recognition has changed over time. If it has, then the original law would not be the law of 1789. Instead, it might be the law of 1937 or the law of 1964 or some other date when the current rule of recognition became stable and discernable. The rule of recognition is a social rule and not itelf a rule of positive law. Social rules can change without a constitutional amendment.
