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: Suggested Citation