At Legal Theory Blog, Lawrence Solum notes the recent exchange between Joel Alicea and Stephen Sachs on the moral case for originalism (also noted here), and adds important comments which begin:
This piece [Is and Ought in Constitutional Law: A Response to Joel Alicea] 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 [that originalism does not require a normative theory] 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. …
Posted at 6:15 AM