In the past, I have noted that there are three main arguments for originalism: 1. Originalism as an interpretive theory (the most accurate meaning of the original document); 2. Originalism as a normative theory (the most normatively desirable interpretation of the Constitution); and 3. Originalism as positivism (the original meaning is the law).
Here I want to explore a type of theory that intersects between the second and third categories: a theory that views the original meaning as the law, not based on positivism, but based on a normative or idealized conception of the law.
If one looks back at some of the old originalist theories, I think it is possible to read them as adopting an idealized conception of the law. The law is not what the rule of recognition requires, as in the positivist theory. Nor is the law what would lead to the best results in general, as some versions of the normative theory hold. Instead, the law is determined through an idealized conception of the law.
Consider this statement by Robert Bork in The Tempting of America:
“When we speak of ‘law,’ we ordinarily refer to a rule that we have no right to change except through prescribed procedures. . . . Statutes, we agree, may be changed by amendment or repeal. The Constitution may be changed by amendment pursuant to the procedures set out in article V. It is a necessary implication of the prescribed procedures that neither statute nor Constitution should be changed by judges. Though that has been done often enough, it is in no sense proper.”
How are we to understand Bork’s argument here? On the one hand, one might see it as a claim about what the law is in a positivist sense. The rule of recognition allows changes in the law only through these prescribed procedures.
But this argument is a bit peculiar. What about changes in the common law? This occurs through judges. Perhaps Bork would say that judges are allowed to change the common law – this is a prescribed procedure. But if judges can change the common law, then why can’t they change constitutional and statutory law? Presumably, Bork would say that written law can only be changed by the same lawgiver who enacted them. But why? Who says so?
Bork does not explain his argument, but one might develop it. Bork might argue that law ought to be determined in this way – as based on the enacted written text – because that is the best understanding of law. In other words, this is how law should function. It is an idealized conception – a kind of natural law, if you will – but one that looks to the lawgiver as the source of norms. While no one can know for sure, this may have been Bork’s underlying view. And I believe it is a premise of many people’s intuitive originalist beliefs.