Elias Neibart (Harvard Law School JD '25) has posted How Originalism Became "Our Law." and Why that Matters (24 Geo. J.L. & Pub. Pol'y _ (forthcoming 2026)) (40 pages) on SSRN. Here is the abstract:
From the positivist’s perspective, originalism is “our law.” As a matter of social fact, our constitutional practices—the way we adjudicate constitutional cases and justify our constitutional decisions—are originalist.
This positivist account is, by its nature, limited. It just tells us that originalism is our law today. It takes an empirical snapshot of today’s social facts: It says, “Originalism is just how we do things around here.” It doesn’t set out to tell us why we should be originalists. It doesn’t give us normative justifications for embracing or accepting originalism in the first place.
But normative justifications are not unimportant. The discipline of jurisprudence has long recognized that laws can be embraced by a society for a panoply of reasons—including normative ones. In other words, people can begin to embrace rules because they believe those rules do good things. And only after those rules have gained widespread acceptance can a positivist look around and say that, as a matter of social fact, those rules are now law.
That’s exactly what happened with originalism. After the Warren Court’s policy-laden approach to jurisprudence, prominent public figures, like Bork, Meese, and Justice Scalia, provided normative justifications for originalism—like judicial restraint. Those justifications made originalism attractive. They led to its widespread acceptance. And because of that widespread acceptance, positivists can now say that originalism is “our law.”
This Article tells this story: the complete story of our law. Positivists have told us what our law is. But this Article makes clear how, why, and when our law came to be. And it explains why this all matters.
Today, originalists have either ignored or rejected these normative justifications. Positivists don’t need them because they don’t help tell us what our law is. And the so-called “New Originalists” justify originalism on other grounds and explicitly reject the justifications given by Bork et al.
But originalists might want to pause before casting aside these normative justifications. These normative accounts led to originalism’s acceptance. They made originalism our law. But things don’t have to be this way. Any positivist would agree that, as a theoretical matter, a new methodology could gain widespread acceptance and supplant originalism as our law. Originalism’s status as our law is not etched in stone. Originalists, then, shouldn’t take it for granted.
So originalists might want to ensure that the methodology is continuously accepted so that it remains our law. If that’s the case, they should understand the reasons why originalism was embraced in the first place. That is, if they want originalism to remain our law today, they should ensure that originalism still promotes and furthers the normative justifications of yesterday. And, in fact, as originalism has recently found itself under attack, originalists have defended the methodology on precisely these grounds.
Posted at 6:34 AM