Originalism and the Aristotelian Tradition: Virtue’s Home in Originalism
Fordham Law Review, Vol. 80, No. 5, p. 1997, 2012
University of Toledo Legal Studies Research Paper No. 2011-03
44 Pages Posted: 20 Aug 2011 Last revised: 10 May 2012
Date Written: August 19, 2011
A concept fundamental to philosophy – virtue – is, with a few notable exceptions, absent from scholarship on constitutional interpretation generally, and originalism in particular. Furthermore, common perceptions of both virtue ethics and originalism have prevented exploration of how incorporating virtue ethics’ insights may make originalism a better theory of constitutional interpretation. This Article fills that void by explaining the many ways in which concepts from virtue ethics are compatible with an originalist theory of constitutional interpretation. More importantly, I show that originalism is more normatively attractive and descriptively accurate when it takes on board virtue ethics’ insights.
Originalism must articulate virtue’s role in constitutional interpretation for a number of reasons. First, incorporating the concept of virtue into originalism will give it greater explanatory power. For example, adding the concept of virtue to the mix helps originalism embrace ideals such as judicial craftsmanship.
Second, incorporating the concept of virtue into originalism makes originalism more normatively attractive. Originalism has transformed over the past thirty years. Most importantly, originalism has come to acknowledge judicial discretion in constitutional adjudication. An originalism that incorporates the lessons of virtue ethics is able to preserve originalism as a viable theory of constitutional interpretation while, at the same time, continuing to acknowledge judicial discretion. An originalism that incorporates virtue ethics’ insights will give the Constitution’s original meaning its due. Simultaneously, it also gives other factors – such as the practical workability of legal doctrine – their due, all in their proper proportion.
Keywords: originalism, virtue, virtue ethics, judicial discretion, precedent
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