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

Abstract

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