The Clash of Rival and Incompatible Philosophical Traditions within Constitutional Interpretation: Originalism Grounded in the Central Western Philosophical Tradition
Lee J. Strang
University of Toledo College of Law
Harvard Journal of Law and Public Policy, Vol. 28, p. 909, 2004
In this Article, I tie original meaning adjudication to the Aristotelian philosophical tradition. I offer three arguments why those who adhere to the Aristotelian tradition should also be originalists: prerogative of authority, jurisdiction, and competence.
Under the Aristotelian conception of the nature of man and society, human beings have ends which we all strive to achieve. Humans cannot reach their end outside of society and thus are members of society in order to reach their end. Society enables its members to reach their ends by securing the common good. An authoritative determination of which path a society shall take to secure the common good is necessary because both what good constitutes the common good for a particular society and what are the most appropriate means to pursue the common good, are rationally underdetermined. Society can only achieve the common good if members of the society abide by society's authoritative, prudential, social-ordering decision. Since members of society are members for the purpose of achieving happiness - which requires their adherence to the social-ordering decision - they must, to rationally pursue the end they already pursue, abide by the decision.
In the Aristotelian tradition, democracy is understood as a society governing and ordering itself through time to achieve the common good. Carried over to our society, I argue that we bound ourselves to the constitutional ordering. Our society - we - exercised self-government. Our society made a prudential, social-ordering decision when it ratified the Constitution. Society intended that decision, embodied in the Constitution, to be binding into the future. Part of that decision was that the original meaning of the text of the Constitution would be binding. This decision has enabled our society to pursue the common good, which enables members of our society to achieve their end, including members today. Thus, individuals today are bound by the original meaning of the Constitution.
The second argument as to why those who adhere to the Aristotelian tradition should also be originalists is jurisdiction. Within the Aristotelian tradition, how authority to govern a society is divided and who is going to make the natural law effective is a prudential question. In our society, the constitutional settlement of 1787-1789 determined that primary law-making responsibilities would devolve to the legislature. Thus, under the binding constitutional settlement chosen by our society to enable us to pursue the common good, the judiciary's primary role is enforcement of previously created positive law. The judiciary does not, except interstitially, have the authority to directly apply natural law norms, but can only interpret and apply the law, including the Constitution. For a judge to act beyond the authority of his office would contravene the authoritative, social-ordering decision and the positive law determination that created the judge's authority in the first instance.
Competence is the last argument. It is based on the distinction in the Aristotelian tradition between legislative and political prudence. The first is possessed by legislators who, in making the natural law effective in their polity, create positive law. The second is the virtue of following the positive law of a polity and is possessed by judges. Judges only possess the first virtue incidentally as secondary law-makers. Thus, it is proper for judges to refrain from legislating in the manner of legislators - that is, directly making the natural law applicable.
Number of Pages in PDF File: 94
Keywords: originalism, original meaning, constitutional interpretation, Aristotle, Aquinas, virtueAccepted Paper Series
Date posted: February 29, 2012
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