The Limits of Natural Law Originalism
93 Notre Dame L. Rev. Online (2017 Forthcoming)
19 Pages Posted: 19 Apr 2017 Last revised: 21 Apr 2017
Date Written: April 19, 2017
In “Enduring Originalism,” Jeffrey Pojanowski and Kevin C. Walsh outline how originalism in constitutional interpretation can be grounded in modern natural law theory as developed by John Finnis. Their argument to that effect is powerful and constitutes a welcome addition both to natural law theory and to originalist theory. However, the authors chose to present their account as a superior alternative to, or modification of, “positive” (“original-law”) originalism of Stephen Sachs and William Baude. It is that aspect of the paper that I focus on in this short essay. Contrary to their strong claims in that direction, Professors Pojanowski and Walsh are far from establishing that positive originalism is deficient and that that their version of natural-law-based originalism offers a plausible alternative to positivist originalism. There is also a worry that, despite professing sympathy towards the “positive turn” in originalism, “Enduring Originalism” is at its core an account of what Professors Pojanowski and Walsh think the law should be, and not what the law is; precisely the kind of argument the positive turn militates against.
Keywords: originalism, constitutional interpretation, jurisprudence, legal positivism, natural law
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