Rule of Recognition

December 19, 2013|Originalism, Rule of Recognition

Is Originalism the Law? Part II: Is Nonoriginalism Illegal?

CUNY staff members protesting on July 28, 2016 on campus in New York City. (Credit: Erik McGregor/Pacific Press/Alamy Live News).

In my previous post, I attempted to explicate the meaning of the Rule of Recognition and to explore whether that Rule might have forbidden originalism. I concluded that at least as of today, one cannot argue that originalism is forbidden. But is there also an argument that originalism is required and therefore that nonoriginalism is illegal?

I don’t think so. As I discussed in my previous post, it seems likely that Supreme Court justices are allowed to decide cases based on originalism or nonoriginalism. Thus, both would appear to be legal.

But originalists may have an ace or two in the hole. One of the striking things about nonoriginalism is that, at least as practiced by judges, it does not candidly admit what it is doing. It appears that the Supreme Court has never admitted that it is deciding a case not in accord with the original meaning of the Constitution, except to the extent that precedent (or perhaps practice) allowed an opposite result. (It is true that nonoriginalists will admit that the expected application of a provision was contrary to its ruling, but that is different from the original meaning.)

Perhaps this reluctance of nonoriginalists to admit what they are doing is important for the Rule of Recognition. Perhaps it suggests that a practice of violating the original meaning is not in accord with the Rule, which is why they are not admitting it.

Of course, one might respond that the practice need not be admitted. So long as the officials know what is occurring, that is enough for it to be accepted.

December 18, 2013|H.L.A. Hart, Originalism, Rule of Recognition

Is Originalism the Law? Part I: The Rule of Recognition and The Legality of Originalism

by Mike Rappaport|1 Comment

CUNY staff members protesting on July 28, 2016 on campus in New York City. (Credit: Erik McGregor/Pacific Press/Alamy Live News).

In the past I have written a couple of posts about the argument for originalism based on the idea that the original meaning of the Constitution is the law. In this and my next post, I will discuss this issue in the context of H.L.A. Hart’s theory of the law.

The simple version of the argument that the original meaning of the Constitution is the law is problematic. In the United States, people are imprisoned every day based on laws that violate the original meaning of the Constitution. Thus, if the original meaning of the Constitution is the law, one might ask in what sense it is the law, since that “law” is not being enforced.

Perhaps the leading way to understand what the law is, in the Anglo American legal world at least, is to consider H.L.A. Hart’s The Concept of Law. Hart believes that the rule of recognition sets forth the criteria of legal validity for creating, changing, and adjudicating law. Thus, if originalism is the law, then that would be the case in virtue of it being required by the rule of recognition.

Where then do we look for the rule of recognition? Hart believes that the rule of recognition represents a convention among officials to regard its criteria as standards that govern their behavior as officials. Thus, the rule of recognition would reflect the views and behavior of judges and other officials as to what the law is.

If originalism were the law, then according to Hart’s theory, it would be required by the rule of recognition. Judges and other officials would believe that only the original meaning was the law.

The problem, of course, is that most judges (and other officials) do not regard only the original meaning as the law. In fact, the dominant view, at least until recently and probably still the majority view today, is that nonoriginalism is a perfectly acceptable way of adjudicating cases. Based on the prevalence of nonoriginalism, one might even argue that originalism is illegal.

In this first post, I will explore the idea of the rule of recognition, with particular reference to whether it forbids originalism. After concluding that the rule of recognition allows originalism, in my next post, I will come back and discuss the possibility that the rule of recognition requires originalism and therefore that originalism might be the law.

October 22, 2013|HLA Hart, It's the law, Originalism, Rule of Recognition

Should We Follow the Original Meaning Because it is the Law?

by Mike Rappaport|6 Comments

CUNY staff members protesting on July 28, 2016 on campus in New York City. (Credit: Erik McGregor/Pacific Press/Alamy Live News).

In response to my prior post on my new book (with John McGinnis), Originalism and the Good Constitution, a commentator takes issues with our argument that

we should follow the Constitution’s original meaning because the Constitution is a good one that protects individual rights, democracy, and limited government. But the goodness of the Constitution is based not just on our evaluation of the Constitution, but also on the fact that it was enacted through a beneficial supermajoritarian enactment process that generally leads to desirable constitutional provisions.

Instead, it is argued that the reason to follow the Constitution’s original meaning is that it is the law. This is an extremely common argument, but alas it is far from obvious. While it is possible that an argument can be made on these grounds, it will require a great deal of work.

One problem is that if the Constitution were an extremely undesirable document – if it required or authorized harsh and brutal treatment – then there would be good reasons for not following it. For example, if a law required slavery, the mere fact that it was the law would not be a good reason for following it. (Of course, there might be other reasons for following the law, but not simply that it was the law.)

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