Thomas A. Smith (University of San Diego School of Law) has posted The Vacated Position: Legal Voluntarism and the Reoccupation of the Classical Constitution, San Diego Legal Studies Paper, on SSRN. Here is the abstract:
Originalism promises to discipline the judicial will by binding it to something fixed, yet it grounds the authority of the fixed thing in an act of will, the ratification of the text and the settled practice of the officials who recognize it. This Article argues that the self-defeating quality of that promise is not peculiar to originalism but is the condition of modern American law, and it borrows Hans Blumenberg’s concept of reoccupation (Umbesetzung) to describe how the condition came about. Every legal order must answer the question by what authority an enactment binds, and the Western tradition has given two answers: that law binds by its conformity to an antecedent order of reason, the natural-law substrate, or that it binds by a fact about what human beings have willed, commanded, or practiced. The Article shows that the American founding contained both answers, unreconciled, in the cohabitation of natural-law limits and a positivist account of rights within Calder v. Bull; that the voluntarist answer hollowed out the substrate across the nineteenth century, through the will theory of contract, the instrumental transformation of property, and the fall of the general common law of Swift v. Tyson, completed in the prediction theory of Holmes; and that the administrative state then occupied the vacated position not as the royal prerogative returned, against Hamburger, but as a genuinely new occupant claiming its seat on a positivist title of delegated will. Originalism, sharing that title’s conception of law, cannot restore the substrate and is better understood as the latest expression of the voluntarism that emptied the position than as the remedy it imagines itself to be; it and living constitutionalism are species of one genus quarreling over which human fact governs. The Article’s deepest claim is that the collapse of law into the human fact recurs, appearing in the Tudor and Stuart prerogative courts under conditions sharing nothing with industrial America, so that the tendency is internal to legal order rather than the product of any particular crisis. The conclusion is accordingly diagnostic rather than restorative: the substrate is not a foundation that can be installed and kept but a settlement perpetually liable to abandonment, whose maintenance is an unending labor against a standing tendency, worth undertaking without the consolation of finality.
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