Is and Ought in Constitutional Law: A Response to Joel Alicea

Abstract

Does originalism need a moral defense? To choose one method of interpretation over another, some argue, is an action: it affects how judges and officials will affect the real world. So interpretive choices might have to be justified the way actions are justified, namely on moral grounds.

These action-focused arguments prove too much. Just as a choice to the Earth goes around the Sun is usually justified by whether or not it really does, a choice to say that the law provides thus-and-so is usually justified by whether it really so provides, not on the moral benefits of it so providing. Constitutional texts don't just fall in our laps like manna from heaven, to be put to whatever uses might seem best; they often emerge from a process of enactment, with their content already determined in light of an existing legal system. The moral case for originalism, such as it is, rests on its being true: originalism really is the law around here, and judges and officials should say so.

Keywords: originalism, jurisprudence, natural law, practical reason, constitutional interpretation

JEL Classification: K00, K1, K10, K19