Will Baude

Digging a Hole: The Legal Theory Podcast

Listeners – our apologies. We’ve given you interesting topic after interesting topic, distinguished guest after distinguished guest. But we’ve strayed from the promise of the podcast, which is legal theory, and legal theory means arguing ad nauseam about whether we’re positivists or normativists. For a recent intervention in that debate, we’re delighted to bring you today’s guest, William Baude, the Harry Kalven, Jr. Professor of Law and Faculty Director of the Constitutional Law Institute at the University of Chicago Law School and a member of the Presidential Commission on the Supreme Court of the United States, to discuss his 2023 Scalia Lecture at Harvard Law School, “Beyond Textualism?”.

We recommend you give the paper a skim before listening – Sam and David don’t waste any time getting into it on this episode. David presses Baude on the relationship between textualism and democracy while Sam is skeptical that Baude’s project is properly textualist at all. Next, we try to make sense of how the law-policy distinction maps onto the common law and the so-called general law past and present. Our tour continues to statutory interpretation before we get to the normativist-positivist debate (or: what’s the difference between Will Baude and Adrian Vermeule?). We end by discussing Baude’s recent foray into celebrity and whether the Constitution bars Donald Trump from running for president.

This podcast is generously supported by Themis Bar Review.

Referenced Readings

• A Matter of Interpretation by Antonin Scalia

• “Finding Law” by Stephen Sachs

• “General Law and the Fourteenth Amendment” by Will Baude, Jud Campbell, and Stephen Sachs

• Legalism by Judith Shklar

• “The ‘Common-Good’ Manifesto” by Will Baude and Stephen Sachs

• “The Real Enemies of Democracy” by Will Baude