The Clash of Rival and Incompatible Philosophical Traditions within Constitutional Interpretation: Originalism and the Aristotelian Tradition

Abstract

I argue in this Article that a central dispute between originalism and nonoriginalism, driven by divergent philosophical traditions, revolves around the nature of “democracy.” Originalists appeal to democracy and government by “the People.” Nonoriginalists respond that “the people” relied upon by originalists are a minority of a long-dead majority: the dead-hand argument.

Nonoriginalists, beginning at least with Alexander Bickel, posit that there is a countermajoritarian difficulty implicit in constitutional judicial review making it undemocratic. The difficulty arises and democracy is undermined when judges overturn the will of the present majority. To resolve this dilemma, nonoriginalists propose numerous solutions, all of which attempt to bring the allegedly undemocratic institution of judicial review in line with democracy.

Both originalists and nonoriginalists seek to justify their modes of constitutional interpretation through appeals to democracy, but they differ in what they understand democracy, materially, to consist of. Originalists, I contend, understand democracy as a “transtemporal” entity composed of all the members of a society, past, present, and future. By contrast, nonoriginalists understand democracy to consist of governance by the current majority of the members of a society: a “presentist” conception.

Keywords: originalism, nonoriginalism, democracy, Alexander Bickel, Aristotle