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[email protected] and telling us what having access to this work means to you and why it’s important to you. Thank you. A POSITIVIST, BASEBALL-CENTRIC CRITIQUE OF ORIGINALISM William D. Blake* INTRODUCTION The1 Constitution invests the Supreme Court with two related powers: discretion and finality. The Constitution contains open-textured language, which creates disputes on which the Court typically has the last say. As Justice Robert Jackson once humbly observed, “We are not final because we are infallible, but we are infallible only because we are final.”2 The baseball rulebook provides similar powers to umpires. Judgment calls are final; they cannot form the basis for appeal or protest.3 Even with the creation of instant replay, overturning an umpire’s call requires a finding of “clear and convincing evidence,” which provides a strong presumption that the call on the field was correct.4 Umpires, like judges, have considerable power in light of the irrevocability of their decisions. For example, the Official Baseball Rules (OBR) warns players and managers that they will be ejected from the game if they quarrel over an umpire’s strike zone.5 Finality is problematic if sports officials abuse their discretion. Consider a (perhaps apocryphal) story of a rookie pitcher who experienced unfair treatment from Hall of Fame umpire Bill Klem. On a two-strike count, the pitcher’s offering to Rogers Hornsby, another Hall of Famer, caught the corner of the plate.