The clash of rival and incompatible philosophical traditions within constitutional interpretation: originalism grounded in the central Western philosophical tradition.

• Author: Strang, Lee J.

1. 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.

   1. 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.

   Here is a short synopsis of my first argument. Under the Aristotelian conception of the nature of man and society, human beings have ends (happiness) that they all strive to achieve. Humans cannot reach their end outside of society and thus are members of society in order to reach their end. Society enables its members to reach their ends by securing the common good. An authoritative determination of which path a society shall take to secure the common good is necessary because, although all societies strive for the common good, what actually constitutes the common good for a particular society is elusive, and the paths to happiness are unclear and numerous. Both what constitutes the common good for a particular society and the most appropriate means to pursue the common good are rationally underdetermined: there is no demonstrable principle of reason by which one can, a priori, order a society to the common good and determine which means the society will utilize to achieve the common good. (7) For our society, the authoritative determination of how we shall pursue the common good is found in the Constitution.

   In the Aristotelian tradition "democracy" is understood as a society governing and ordering itself through time to achieve the common good. Society is "transtemporal." It is an entity existing through time and acting for a purpose. One temporal slice of society and whatever the majority of its citizens believe at that point in time is not society and government by that majority is not democracy, at least not all of it. The Aristotelian tradition rejects the "presentist" views of society and thence of democracy that arose in the Enlightenment. Under the Aristotelian understanding of democracy, a society can, at Time 1, make a decision regarding the ordering of itself that is binding on it and its members until some time, Time 2, when society determines to abide by another ordering. A society may reorder itself through the means prescribed by the initial ordering of the society (if there are any). (8)

   Society can only achieve the common good if members of the society abide by society's authoritative prudential ordering decision. Since members of society are members for the very purpose of achieving happiness--which requires their adherence to the social ordering decision--they must, to rationally pursue the end they already pursue, abide by the prudential ordering decision. The argument of individual obligation is straightforward: men pursue happiness (perfection); men are members of society to achieve perfection; the common good is necessary for society to perfect its members; common action is necessary to the common good; common action is based on a unity of judgment; unity of judgment is exceedingly rare (and practically impossible) without authority; therefore, individuals must abide by the authoritative social determination.

   Carried over to our society, I argue that we (our society) bound ourselves to the constitutional ordering. (9) Our society--we--exercised self-government. Our society made a prudential social ordering decision when it ratified the Constitution. Society intended that decision, embodied in the Constitution, to be binding into the future. Part of that decision was that the original meaning of the text of the Constitution would be binding. This constitutional prudential ordering decision has enabled our society to pursue the common good, which enables members of our society to achieve their end, including members today. Thus, individuals today are bound by the original meaning of the Constitution. (10)

   I label the second argument as to why those who adhere to the Aristotelian tradition should also be originalists jurisdiction. It is related to the first. Within the Aristotelian tradition, how authority to govern a society is divided and who is going to make the natural law effective in a society is a prudential question settled by positive law (or tradition). In our society, the constitutional settlement of 1787-1789 determined that "primary" law-making responsibilities would devolve to the legislature while the judiciary would have "secondary" law-making authority. Thus, under the binding constitutional settlement chosen by our society to enable us to pursue the common good, the judiciary's primary role is enforcement of previously created positive law. The judiciary does not have the authority to "make law" in the primary sense--the office of judge does not have the authority to directly apply natural law norms--but can only interpret and apply the law, including the Constitution. For a judge to act beyond the authority of his office would contravene the authoritative social ordering decision designed to effectively pursue the common good that was binding on the judge and the positive law determination that created the judge's authority in the first instance.

   Competence is the last argument. It is based on the distinction in the Aristotelian tradition between legislative and political prudence. The first is possessed by legislators, who in making the natural law effective in their polity, make positive law. The second, the virtue of following the positive law of a polity, is possessed by judges. Judges only possess the first virtue incidentally as secondary law-makers. Thus, it is proper for judges to refrain from legislating in the manner of legislators--that is, directly making the natural law applicable. (11)

   Part II will provide a brief overview of the two rival and incompatible philosophical traditions in the West. A subsequent Article of the series will flesh out the traditions.

   Part III will begin by discussing the means and extent to which a society may legitimately bind itself to a particular social ordering in order to effectively pursue the common good. Thereafter, Part III will argue that our society, in 1787-1789, bound itself to a particular social ordering through the ratification of the Constitution. Part of this constitutional social ordering was the bindingness of the original meaning of the text of the Constitution. Lastly, in Part IIIC, I will argue that, assuming the tenets of the Aristotelian tradition, members of our society are bound by the original meaning of the Constitution.

2. THE RIVAL AND INCOMPATIBLE PHILOSOPHICAL TRADITIONS

   1. Introduction

      In this Part I will provide a brief overview of what I am claiming...