The (Ir)relevance of Positivist Arguments for Originalism

Some constitutional theorists have started looking to jurisprudential accounts of the nature of law for help in resolving disputes in constitutional theory. Most prominent is the “positive turn” defended by William Baude and Stephen Sachs. According to Baude and Sachs, ongoing debates in constitutional theory can be resolved by looking to positive law—that is, to the convergent social practices of legal officials. As a result, they claim that we can avoid the normative debates that have traditionally occupied constitutional theorists. Here, I argue that any attempt to settle substantive debates in constitutional theory via jurisprudential accounts of the nature of law will face two problems. First, they will run the risk of double counting—of treating legality itself as providing additional reasons over and above those earned by the theory’s criteria of legality. Second, they risk a kind of illicit bootstrapping by claiming normative upshots supposedly inherent in legality itself that aren’t traceable to the theory’s criteria of legality. Normative constitutional theorists have traditionally aimed to provide an account of sound adjudication. That is a worthy project. But such theorists must defend their views based on their underlying normative credentials. One cannot avoid that burden by turning to legal metaphysics.