The Clash of Rival and Incompatible Philosophical Traditions within Constitutional Interpretation: Originalism Grounded in the Central Western Philosophical Tradition

By Strang, Lee J. | Harvard Journal of Law & Public Policy, Summer 2005 | Go to article overview

The Clash of Rival and Incompatible Philosophical Traditions within Constitutional Interpretation: Originalism Grounded in the Central Western Philosophical Tradition


Strang, Lee J., Harvard Journal of Law & Public Policy


I. INTRODUCTION
  A. Preview of the Defense of Originalism Based
    on the Tenets of the Aristotelian Tradition
II. THE RIVAL AND INCOMPATIBLE PHILOSOPHICAL
    TRADITIONS
  A. Introduction
  B. The Central Western Philosophical Tradition
     1. Rational Man With a Purpose
     2. Man is Naturally Political
     3. Society as a Moral Entity Pursuing the
        Common Good Through Time
  C. The Enlightenment Tradition
  D. Summary
III. ORIGINALISM GROUNDED IN THE CENTRAL
      WESTERN TRADITION
  A. Whether and in What Manner a Society May
     Bind Itself
  B. Enter the Framers: Our Society's Road to the
     Binding Constitutional Social Ordering
     1. Introduction
     2. Criteria to Determine When a Group of
        People Becomes a Society
     3. Differences Between the Colonies Prior to the
        Revolutionary Period
     4. The Road to One National Society: Unification
        of the Colonies During the Revolution and
        Under the Articles of Confederation
     5. Philadelphia: The Framers Propose a New
        Social Ordering to Save Society
     6. Ratification of a New Constitutional
        Ordering
        a. Introduction
        b. Contemporary Understanding of the
           Nature of the Ratification of the
           Constitution
           i. The People, Through Ratification of the
              Constitution, Prudentially Ordered
              Society, Including Future Generations,
              Toward the Common Good
           ii. A Major Mechanism Through Which
              Our Society Sought to Bind Itself
              was the Original Meaning of the
              Text of the Constitution
        c. Summary
     7. Conclusion
  C. But Why Originalism?: Why Judges (and the
     Rest of Us) are Bound by the Original Meaning
     1. Introduction
     2. The Aristotelian Tradition and Originalism
        a. Prerogative of Authority
        b. Jurisdiction
        c. Competence
IV. CONCLUSION

I. INTRODUCTION

This is the capstone Article in a series of three articles. This series of articles offers a comprehensive understanding of constitutional interpretation. It grounds original meaning adjudication (1) in what is arguably the central tradition in Western philosophy. (2) I rely on the central propositions of this, what I label the Aristotelian tradition, in grounding originalism. (3)

In the first Article of the series I argued that originalist appeals to self-government by the People are incomplete and that the countermajoritarian difficulty posited by nonoriginalists does not exist. (4) In a subsequent Article of the series, I will describe the central Western philosophical tradition, its defining characteristics, and some major exponents from Aristotle to modern scholars. (5) In this, the central Article of the series, I will tie original meaning adjudication to the Aristotelian tradition (6) and explain why originalism follows from the tenets of the tradition.

A. Preview of the Defense of Originalism Based on the Tenets of the Aristotelian Tradition

Following the view of the nature of man and society found in the Aristotelian tradition, I offer three arguments as to why those who adhere to the Aristotelian tradition should also adhere to originalism. They are titled: prerogative of authority, jurisdiction, and competence. Of course, if one does not accept the truth of the Aristotelian tradition, then the defense of originalism grounded in that tradition will likely not be persuasive. Even if one accepts the tenets of the Enlightenment tradition, my hope is that the other claims in this series of articles will remain telling: first, that there are two rival and incompatible philosophical traditions and how one views the nature of the Constitution drives how one interprets the document; and second, how one views the nature of the Constitution is in turn driven by one's underlying philosophical commitments to one of the two traditions.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Clash of Rival and Incompatible Philosophical Traditions within Constitutional Interpretation: Originalism Grounded in the Central Western Philosophical Tradition
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.