Two Cheers for the Constitution of the United States: A Response to Professor Lee J. Strang

Abstract

This article is an invited response to Professor Lee Strang’s article Originalism and the Aristotelian Tradition: Virtue’s Home in Originalism, 80 Fordham L. Rev. 1997 (2012). Strang defends original public meaning originalism from a virtue theoretic perspective that he traces to the “central Western tradition” and ultimately to Aristotle. I reply that those committed to that tradition do better (1) to reject original pubic meaning originalism, (2) to embrace some version of original intent originalism, and (3) to defend the original intent meaning of the U.S. Constitution only with important reservations and on certain conditions. The original sin of original public meaning originalism, I argue, is that it illegitimately suppresses the lawgiver. Larry Solum’s argument that we should treat law as a “message in a bottle” provides a vehicle for showing how the lawmaker is not given his or her due in original public meaning originalism.

Keywords: virtue, originalism, original public meaning, lawgiver, separation, church, state, framers