Political Philosophy and the Fruitless Quest for an Archimedean Stance in the Debate Over Originalism
79 Pages Posted: 25 Jan 2017
Date Written: January 1, 2017
I have previously argued that ontology and the philosophy of language have been misused or misunderstood in the debate over originalism. That analysis emphasized the unstated and often unacknowledged role such philosophical premises play. Because the claims of political philosophy are often made more expressly and because the appeal to political philosophy has been an important part of our constitutional discourse at least since the Federalist Papers, it may appear that political philosophy plays an important constructive role in our constitutional decisional discourse. It does not.
In this article I explore the role of political philosophy in the debate over originalism and extend the analysis of my earlier work. I defend five theses. First, originalism relies on political philosophical claims to ground its claims, occasionally expressly. In particular, originalism begins with political philosophy in its account of the social contract as the source of the Constitution’s binding force and the fundamental challenge of the countermajoritarian dilemma as a dispositive argument for the originalist interpretative methodology. Second, originalism’s reliance on political philosophy is fundamentally inconsistent with originalism’s central claims. Third, originalism’s critics also rely upon political philosophy, albeit usually of a different sort, to make their arguments against originalism and defend their alternative accounts of constitutional law and decision. Those foundational critical arguments against originalism are flawed and the use made of political philosophical claims to construct the critics’ alternatives to originalism is erroneous. Fifth, I generalize these claims and my earlier work to explain why political philosophy cannot play a foundational role in our constitutional decisional discourse.
Keywords: originalism, jurisprudence, political philosophy, Scalia, judicial review, social contract, metaphilosophy,
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