Most defenders of originalism agree with Vermeule that originalism needs a justification outside of itself.
I have written various posts about originalism and positivism. Perhaps the academic who has written the most about interpretive approaches and positivism is Matt Adler from Duke, but I have relatively neglected his articles. It is not a mistake I will make again.
I strongly recommend a recent article of his – Interpretive Contestation and Legal Correctness –that lays out the issues clearly and admirably. In particular, the puzzle for him is how there can be law when there is significant disagreement about interpretive matters (such as the disagreement between originalism and nonoriginalism). He explores how various theories would address the issue, including natural law theory, positivism, and Dworkin’s interpretive theory.
At the end of the article, his discussion of positivism addresses what in essence is my solution to the problem. In my view, certain forms of originalism and nonoriginalism are now accepted as law and therefore either can be employed. The reason is that (1) there are a significant number of people or officials who accept these interpretive methods, (2) decisions reached according to them are disagreed with but not treated as illegal, and therefore (3) the rule of recognition appears to accept both interpretive approaches.
Matt has two objections to this solution. First, he argues that this solution means that a large number of legal cases involve indeterminacy and therefore neither the majorities in those cases nor the dissenters “were determinately legally correct.”
The question is whether this is a bug or a feature. I share the concern that such indeterminacy is undesirable as a normative matter, but as a descriptive matter it accurately captures our constitutional practice. It is generally recognized that hard cases go to the Supreme Court, where the court will split as to the correct resolution. It is accepted that the Supreme Court gets to decides these cases (so long as it uses acceptable methods). We may not like it, but that is how our system functions. If a description of our legal system did not acknowledge this legal indeterminacy, it would be problematic.
Matt’s second objection to the solution that both originalism and nonoriginalism are allowed is that it would suggest that judges and scholars who debate interpretive methods are confused about the law. They are “confused” because they treat their solution as the legally correct one and other side’s solution as legally incorrect, even though “no method is determinately correct.”
I don’t buy this objection either. There is nothing problematic in different judges each believing that their view is the better view – the one more likely to be correct. When they say it is correct, they don’t deny that others believe otherwise. Nor are they saying that it follows clearly from accepted premises. Instead, they believe they are correct but recognize that others have a different view (and that different view cannot be ruled out in the same way that deciding cases based on astrology would be). It is similar to the disagreement about a difficult case involving arguments based on text, structure, history, purpose, tradition and normative desirability. Just as the justices disagree about the resolution of the case based on these various criteria, so to do the justices disagree about the appropriate interpretive approaches based on multiple criteria.
Finally, it is true that an individual case produces a precedent and therefore some stable resolution, whereas interpretive disagreements continue. But that is the result of the fact that precedent is not applied to interpretive matters. The Supreme Court decides case 1 based on originalism and then case 2 based on nonoriginalism. But no one argues that it failed to follow precedent. So the problem of interpretive disagreement continues. But that does not mean that the Court’s disagreement about interpretive approaches is any less legal than its disagreements about particular cases.