ORIGINALISM'S PROMISE: AN INTENTIONALLY THIN, NATURAL LAW ACCOUNT OF OUR FUNDAMENTALLY JUST, COMPLEX, CONSTITUTIONAL SYSTEM.

• Author: Strang, Lee J.

1. INTRODUCTION

   It is a high honor to receive such thoughtful criticism from such excellent scholars. Each commentator brings to bear his expertise and perspective to criticize and, in doing so, elucidate the arguments in Originalism's Promise: A Natural Law Account of the American Constitution. (1) Dr. Lewis' review is wonderfully thoughtful and engaging because it employs his expertise in philosophy and particularly on the common good. Lewis' engagement with my arguments is both detailed and fair. He claims that my natural law account is both too thin and too thick, which in the end satisfies no one. Professor Green's review winsomely argues that Originalism's Promise repeatedly ties too closely together positive law and morality, and in doing so harms the integrity of both. According to Green, there is a much simpler--and therefore, more attractive--justification for originalism: originalism is the product of officer duty to tell the truth. Professor Segall, as one would expect (and welcome!) from the author of Originalism as Faith, (2) robustly criticizes many aspects of Originalism Promise as examples of an irrational faith in originalism instead of reasoned justification for a theory of interpretation. Occasionally sympathetic and frequently caustic, Segall bemoans that originalism has metastasized from its humble, "simple[]," roots into a "fancy theory." (3) Originalism was originally a sensible "directive to judges to abstain from society's most controversial social, cultural, and political issues absent clear constitutional error." (4) Now it's anything but simple: it includes "linguistic calisthenics," a "complex panoply of justifications," and even--gasp!--"academic musings"! (5)

   This exchange displays the good faith engagement of scholars from different perspectives together pursuing the truth. 1 congratulate and thank the Faulkner Law Review for providing a forum for our dialogue, one of many such symposia the Law Review has hosted. My knowledge of my own arguments has been deepened through this exchange, and I'm confident that Professors Green, Lewis, and Segall have similarly been enriched.

   There are aspects of the reviews with which I agree, and I wish I would have received such feedback when I was writing the book! There are other aspects of the reviews that I think are the product of me not adequately explaining my reasoning. And there are also parts of the reviews that accurately engage with the substance Originalism's Promise and with which I explain my disagreement, below.

   In this Response, I address four major criticisms offered by the reviewers. My responses show that my natural law account of the Constitution is both reasonably modest in the claims it makes upon Americans while retaining sufficient power to support the Constitution's original meaning. The natural law account is modest because its claims about what the natural law is are relatively modest, as exemplified by my instrumental conception of the common good, and the account makes room for significant human creativity through positive law to organize Americans for the common good. Yet, it remains powerful enough to provide reasons for Americans to (continue to) support the Constitution's original meaning.

   First, I argue that my use of the Aristotelian philosophical tradition to describe the source of my account's key conceptual tools is both accurate and valuable, and that it is accessible to scholars and educated Americans. Second, I explain why my natural law account of the Constitution, which employs a full(er) legal theory (than some originalists) is more attractive than a parsimonious account premised solely on the virtue of truth telling. (6) Third, I show that the thin conception of the common good I employ is sufficiently weighty to provide Americans with reasons to support the Constitution's original meaning. Fourth, I defend my Deference Conception of Constitutional Construction and my theory of originalist precedent from Professors Green's and Segall's criticisms. I show that both are reasonable attempts by our legal system to implement the Constitution in light of the limits of the human condition and the mistakes that judicial officers will make.

2. A NATURAL LAW ACCOUNT OF THE U.S. CONSTITUTION IS A COHERENT AND ACCESSIBLE PROJECT

   1. Introduction

      Originalism's Promise provides a "natural law account" of our Constitution. My description of that account is explicitly drawn from the Aristotelian philosophical tradition. I did so for three primary reasons. First, my use of the tradition was the product of scholarly honesty. The conceptions of law, the legal system, legal authority, and practical reasoning, along with the concepts of natural law, virtue ethics, and the common good--all of which I employed--came from that tradition, and I owed it to the scholarly community to say so. Second, my use of the tradition was informational. I wished to provide a more-fulsome explanation of the tools I was deploying, (7) which I did by explaining their origin in the tradition. This context tells readers both what conception of the concepts I employed, along with who and what to read to learn more about my key conceptual tools. Third, my use of the tradition was meant to "cover the waterfront" of normative justifications for originalism. Before Originalism's Promise, descriptions and normative accounts of originalism relied on resources drawn from other ethical traditions. (8) There were deontological (9) and consequentialist (10) justifications in the literature, (11) and Originalism's Promise provided a justification that wove together virtue ethics and natural law and thereby filled in this significant gap. Mine was the first book-length explanation of originalism from the Aristotelian philosophical tradition.

   2. Americans of Good Faith Open to the Substantial Reasons that Support Originalism

      One of Dr. Lewis' themes is: who is Originalism's Promise mainly intended to convince? (12) This question runs through many of Dr. Lewis' critiques based on my use of the label "Aristotelian philosophical tradition" and my substantive account of human flourishing and the common good drawn from that tradition.

      Originalism's Promise has a number of audiences. One is originalists who will find in Originalism's Promise a synthesis of various originalist positions (13) along with new moves within originalism (14) the most important of which is the law-as-coordination normative justification for originalism. (15) A second audience is constitutional scholars who are interested in issues of constitutional interpretation, and Originalism's Promise provides these scholars with a summary of originalism and a two-pronged justification for it. It presents an accessible description of the "state of the art" of originalist theory that scholars who write in constitutional law will find useful as they engage with their own subjects. My law-as-coordination account of originalism draws on widely-recognized aspects of legal systems and couples them to aspects of the common good (16) that most constitutional scholars can, at least in principle, accept. Third, Originalism's Promise is aimed at all Americans of good will who wish to learn how they can be faithful to our common, written Constitution. It gives Americans reasons to believe that their fealty to our written Constitution is sound and valuable, and should continue. Originalism's Promise does not try to convince anyone that natural law or virtue ethics is true; instead, it describes them to readers and proceeds to leverage those bodies of thought to elucidate and support originalism.

      These audiences are consistent, though there is a practical tension in addressing all of the audiences simultaneously. One tension is over the amount of background information I needed to provide to get all of the audiences up to speed to be able to understand my arguments. This concern is tied to another of Lewis' critiques.

   3. The Aristotelian Tradition is Coherent and Accessible

      Lewis argues that my use of the label Aristotelian tradition is both inaccurate and unhelpful. (17) I think it is neither. I employed the label Aristotelian tradition to provide readers with additional information about my argument. In my experience, especially in the American legal academy, concepts like natural law and virtue ethics conjure up (at best) notions of benighted make-believe and at worst oppressive theories that seek unreasonable degrees of control over free human beings. Aristotle was someone with whom most readers have at least a passing familiarity, and it is generally a positive one. By introducing readers to a body of thought, identifying the key figures and sources, and stating the propositions I employed, I provided readers less attuned to the tradition with the resources to explain the foundations for my argument and avenues for additional information.

      The label Aristotelian is a fair label for the tradition of thought set into motion by Aristotle and continued and added to by Aquinas and subsequent participants in the tradition, including those referenced by Lewis, such as Alasdair MacIntyre. (18) First, my use of the label Aristotelian tradition for the people and positions I relied on in Originalism's Promise is hardly novel. The widely-read and respected Stanford Encyclopedia of Philosophy describes the relationship between Aquinas and Aristotle in terms similar to my project: "Thomas Aquinas[] sought to reconcile Aristotle's philosophy with Christian thought. Some Aristotelians disdain Aquinas as bastardizing Aristotle, while... [m]any others in both camps take a much more positive view, seeing Thomism as a brilliant synthesis of two towering traditions." (19) Ralph McInerny and John O'Callaghan, in their entry on Saint Thomas Aquinas, similarly concluded that "[t]he recognition that Thomas is fundamentally an Aristotelian is not equivalent to the claim that Aristotle is the only influence on him. It is...