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
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. …