Why Should Anyone Be an Originalist?

Diritto Pubblico Comparato ed Europeo Online, Vol. 31, p. 583

Notre Dame Law School Legal Studies Research Paper No. 1767

8 Pages Posted: 17 Oct 2017

Date Written: October 13, 2017


This essay, a contribution to an international symposium on originalism, offers a defense of originalist constitutional interpretation grounded on the moral purposes of positive law. This essay draws on the natural law tradition to argue that a reasonably just set of constitutional rules merits the interpreter’s moral obligation. This is so not because a given constitution is perfectly just, nor because the constitution “just is,” but rather because a practically reasonable person should promote the moral benefits of a posited and durable, framework of cooperation that passes the threshold of moral acceptability. And, because practical reason underdetermines what kind of constitution a polity should choose, many modern constitutions clear that threshold.

Keywords: Constitutional Law, Comparative Law, Originalism, Natural Law

JEL Classification: K10

Suggested Citation

Pojanowski, Jeffrey A., Why Should Anyone Be an Originalist? (October 13, 2017). Notre Dame Law School Legal Studies Research Paper No. 1767. Available at SSRN: https://ssrn.com/abstract=3052636

Jeffrey A. Pojanowski (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

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