Lee J. Strang (Ohio State University, Moritz College of Law) has posted The Modest Place of Practical Reason within Originalism on SSRN. Here is the abstract:
The natural law tradition has experienced a dramatic revival in Anglo-American thought since the publication of John Finnis’ groundbreaking Natural Law and Natural Rights in 1980. More recently and—I argue, relatedly—there has been a “natural-law moment” especially—though not only—in the context of constitutional interpretation.
One of the most exciting aspects of this revival is the dynamic character of the scholarship. Scholars working in this vein have engaged in robust debates on a variety of aspects and implications of the tradition. One of the most important debates is over the role(s) of first-order practical reasoning to ascertain the law’s meaning. Some scholars, such as Veronica Rodriguez-Blanco, have argued for a robust place for practical reason to ascertain the law. “The normativity of law explains how we engage and use reasons for actions … reasons for actions are necessarily connected to values and provide the grounds for legal directives and legal rules.” There are a variety of other positions articulated by scholars. For example, Professors Jeff Pojanowski and Kevin Walsh argued that, “[g]iven the wide range of morally acceptable constitutional regimes available to framers of a constitution, in many legal regimes there will be few, if any, instances in which first-order moral reasons will trump an interpreter’s second-order obligation to enforce the positive law.”
One particularly important manifestation of this debate is in the context of constitutional interpretation of the United States Constitution. Of course, scholars have debated for decades whether and to what degree judges should use first-order ethical reasoning when they interpret the U.S. Constitution. In fact, one prominent articulation of the distinction between living constitutionalism and originalism is that living constitutionalists reject either (or both) of originalism’s fixation thesis or its constraint principle. Doing this would commit at least some, and perhaps most, living constitutionalists to judicial use of practical reason to interpret the Constitution.
This Article makes three key moves within this debate. First, it describes how originalism’s own theoretical evolution, coupled with the revival of natural law in the Anglo-American world, allowed for a rapprochement between both. Second, it argues that originalism, best understood, has a modest place for interpreter practical reason, and that this is a determinatio of the American constitutional system. Third, it articulates four reasons that support originalism’s economical use of interpreter practical reason. To the extent my argument is successful, it provides an example of a successful, mature legal system that employs interpreter practical reason moderately.
Highly Recommended!
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