32 Pages Posted: 9 Aug 2018 Last revised: 24 Dec 2018
Date Written: December 22, 2018
How should judges reason in a well-ordered constitutional democracy? John Rawls answered they ought to do so in accordance with public reason. We show this requirement is correct but inadequate. It permits too many disparate principles of constitutional interpretation. Intriguingly, Rawls himself suggests another criterion: any principle of constitutional interpretation must forestall the political stakes problem – the tendency for ordinary politics to become do-or-die affairs when de facto constitutional amendment can follow from majoritarian control. We consider two opposed interpretive principles, Originalism and Living Constitutionalism, which are both consistent with public reason. But the former better copes with the political stakes problem. Originalism does this by striking down constitutional revisions that do not proceed according to de jure procedures. In contrast, Living Constitutionalism merely relocates the political stakes problem to whatever arena determines the selection of judges. We thus conclude, on Rawlsian grounds, that judges should be Originalists.
Keywords: Constitution, Judiciary, Living Constitution, Originalism, Public Reason, Rawls
JEL Classification: H11, K19
Suggested Citation: Suggested Citation