Originalism's Promise: An Intentionally Thin, Natural Law Account of Our Fundamentally Just, Complex, Constitutional System

Abstract

In this Response to Professors Green, Lewis, and Segall, I address four major criticisms offered by them. My responses show that my natural law account of the Constitution is both reasonably modest in the claims it makes upon Americans while retaining sufficient power to support the Constitution’s original meaning. The natural law account is modest because its claims about what the natural law is are relatively modest, as exemplified by my instrumental conception of the common good, and the account makes room for significant human creativity through positive law to organize Americans for the common good. Yet, it remains powerful enough to provide reasons for Americans to (continue to) support the Constitution’s original meaning.

First, I argue that my use of the Aristotelian philosophical tradition to describe the source of my account’s key conceptual tools is both accurate and valuable, and that it is accessible to scholars and educated Americans. Second, I explain why my natural law account of the Constitution, which employs a full(er) legal theory (than some originalists) is more attractive than a parsimonious account premised solely on the virtue of truth telling. Third, I show that the thin conception of the common good I employ is sufficiently weighty to provide Americans with reasons to support the Constitution’s original meaning. Fourth, I defend my Deference Conception of Constitutional Construction and my theory of originalist precedent from Professors Green’s and Segall’s criticisms. I show that both are reasonable attempts by our legal system to implement the Constitution in light of the limits of the human condition and the mistakes that judicial officers will make.

Keywords: originalism, natural law, common good, precedent, constitutional construction, virtue ethics