The Functions of Ethical Originalism

Abstract

Jamal Greene has suggested that much originalist argument be understood on the model of what Philip Bobbitt called ethical argument, meaning argument about the American constitutional ethos. This short paper expands that suggestion by identifying three discursive functions that ethical-originalist argument serves other than attempting to persuade decisionmakers to decide constitutional issues in particular ways. First, ethical-originalist argument aims to establish the content of constitutional history as a value in itself. Second, ethical-originalist argument helps to allay anxieties about constitutional legitimacy that the dead-hand problem might otherwise foster (albeit without actually solving the dead-hand problem). Third, ethical-originalist argument can establish particular participants in constitutional discourse as authentically qualified to arbitrate issues in the name of the constitutional tradition. The paper closes by suggesting that much textualist argument as well as originalist argument can profitably be understood as sounding in ethos.

Keywords: originalism, ethos