Paradoxes of Positivism and Pragmatism in the Debate About Originalism
92 Pages Posted: 17 Dec 2016
Date Written: September 1, 2016
The long-running debate between originalism and competing accounts of the Constitution has unfolded with little attention to classic American jurisprudential concepts of legal positivism and legal pragmatism. In this syncretic article, I explore how these jurisprudential and theoretical strands fit together. I also explore several lessons we can learn about legal positivism and legal pragmatism and one critical lesson we can learn about the debate about originalism, if we contextualize the debate over originalism in that part of the space of reasons.
First, positivist and natural law originalisms are substantially similar in their substantive constitutional content. Originalism critics — both those who embrace positivism and those who embrace natural law — similarly share substantially congruent substantive criticisms of originalism. These parallels raise an important question about the significance of the distinction between legal positivism and natural law. The debate over originalism shows that the opposition between legal positivism and natural law may be less interesting or important than it is generally taken to be.
Second, the fundamental difference between originalism — which, in relevant part, defends a deontological account of constitutional law — and its consequentialist pragmatist critics provides another argument why the debate about originalism cannot be resolved on its own terms. I have previously argued that sophisticated philosophical premises make the originalism debate pathological rather than fruitful. But those arguments are quite highfalutin. This article provides another argument for the fruitlessness of the debate. Without common grounds between the protagonists as to the place of consequences in constitutional decision process, a resolution of the more particular issues in the debate over originalism cannot be hoped for or expected. But as we contextualize the originalism debate we may understand why it is a dead end in our constitutional theory and, more importantly, in our constitutional decision process. It is a dead end because the two sides in the debate have inconsistent theories of the nature of constitutional law. With a better understanding of how the debate fits in with other parts of our constitutional jurisprudence, we may leave the debate behind in our continuing constitutional discourse.
Keywords: positivism, pragmatism, originalism
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