Rawlsian Originalism

Jurisprudence, forthcoming

32 Pages Posted: 9 Aug 2018 Last revised: 24 Dec 2018

See all articles by Brian Kogelmann

Brian Kogelmann

University of Arizona - Department of Philosophy

Alexander William Salter

Texas Tech University - Rawls College of Business; American Institute for Economic Research

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

Kogelmann, Brian and Salter, Alexander William, Rawlsian Originalism (December 22, 2018). Jurisprudence, forthcoming, Available at SSRN: https://ssrn.com/abstract=3219788 or http://dx.doi.org/10.2139/ssrn.3219788

Brian Kogelmann (Contact Author)

University of Arizona - Department of Philosophy ( email )

Tucson, AZ 85721
United States

Alexander William Salter

Texas Tech University - Rawls College of Business ( email )

Lubbock, TX 79409
United States

HOME PAGE: http://awsalter.com

American Institute for Economic Research

PO Box 1000
Great Barrington, MA 01230
United States

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