Jeffrey A. Pojanowski (Notre Dame Law School) has posted Why Should Anyone Be an Originalist? (Diritto Pubblico Comparato ed Europeo Online, Vol. 31, p. 583) on SSRN. Here is the abstract:
This essay, a contribution to an international symposium on originalism [ed.: inspired by Professor Larry Solum's testimony in the Gorsuch hearings], offers a defense of originalist constitutional interpretation grounded on the moral purposes of positive law. This essay draws on the natural law tradition to argue that a reasonably just set of constitutional rules merits the interpreter’s moral obligation. This is so not because a given constitution is perfectly just, nor because the constitution “just is,” but rather because a practically reasonable person should promote the moral benefits of a posited and durable, framework of cooperation that passes the threshold of moral acceptability. And, because practical reason underdetermines what kind of constitution a polity should choose, many modern constitutions clear that threshold.
And, only 8 pages! (summarizing a longer article).
Plus, from the introduction, this is a useful summary of alternative justifications for originalism:
Before moving to my positive argument, I would like to flag three important, but I believe imperfect, defenses of constitutional originalism. The first kind of argument is conceptual: legal interpretation is by its nature originalist in character. If one seeks to understand what a text means, one must identify its original public meaning or what its authors’ originally intended to communicate. Reading that seeks any other kind of meaning (such as, “what makes this text the best it can be today?”) is not interpretation, but rather re-authoring by the reader. Re-authoring may be morally permissible, and not all constitutional law is interpretation, but to the extent there is interpretation, it is by definition originalist. Yet even if we accept this controversial definition of what “interpretation” is, one needs a further argument for why originalist interpretation ought to reign supreme in constitutional law, as opposed to doctrinal development over and above the original law.
A different reason is normatively particular. To the extent that an original constitution contains morally appealing legal propositions, it is good for courts to be originalist about them. We can call this the Happy Constitution theory of originalism. Critics sometimes argue that originalism is a marriage of convenience for American conservatives who prefer a smaller, decentralized government. Whatever the basis of that charge—and it is clearly not applicable to Professor Solum—an originalism that depends on a particularized moral assessment of the original constitution is rests on shaky ground. Such American originalists would have no principled argument against non-originalists who like a larger, more activist federal government. From this perspective, originalism is more a political project than a theory of interpretation. That would be awkward for a movement that prides itself on the rule of law and judicial neutrality.
A third reason is more legalist in character. Constitutional law does not consist only of primary rules. Rather, there are second-order rules of interpretation, and if that law of interpretation points officials towards originalism, courts should follow the law and be originalists. This angle of argument, which draws on H.L.A. Hart’s understanding of secondary rules, adds a welcome level of sophistication to originalist theory. But this positivist analysis also has limits. First, one has to conclude that the positive law of interpretation is in fact originalist. That is contestable in the United States and, to the extent it is false in jurisdictions abroad, the positivist argument does not offer non-U.S. courts and scholars any reason to be originalist.10 Furthermore, even if the positive law of interpretation is originalist, an interpreter needs moral reasons to persist in being originalist. Positive law changes all the time, and the secondary rules of interpretation may be particularly prone to shifting right under our noses. As with the conceptual argument above, one needs to move from the is to the ought.
Posted at 6:17 AM