Which Part of 'Our Law' Is Originalism?

Abstract

Will Baude and Stephen Sachs have argued that originalism should bind courts because originalism is “our law.” This Article attempts to specify, from the perspective of positive law, what part of our law originalism could be. It does so by identifying three challenges that Baude and Sachs face: a Kelsenian problem, a Hartian problem, and an empirical problem. The Article next considers Andrew Coan’s hypothetical constitutional amendment as a solution. The Article concludes that Baude and Sachs’s argument that originalism is our law remains deficient from the perspective of positive law.