Is and Ought in Constitutional Law
Does originalism need a moral defense? In his newly published Vaughan Lecture, Joel Alicea argues that it does:
Justifying a constitutional methodology requires arguing that judges ought to employ that methodology, which requires making a moral argument that the methodology is better than its competitors. And we can only know the comparative moral soundness of competing methodologies by reference to some standard of moral evaluation. . . .
Thus, if originalists wanted judges to accept their view and reject competitor theories, they had to provide a moral argument based on contested moral truth claims. That does not mean that originalist judges necessarily have to make case-by-case moral judgments when adjudicating cases, but it does mean that they necessarily have to make moral judgments in choosing originalism over its competitor methodologies.
The Harvard Journal of Law and Public Policy was kind enough to publish my response, entitled “Is and Ought in Constitutional Law.”
Addressing as well similar arguments by Francisco Urbina and Cass Sunstein, my paper puts forward a simple proposition. If, on your theory of law, originalism correctly describes what the law is, then judges and officials ought to say so, for the same reasons we all have to tell the truth.
From the abstract:
Does originalism need a moral defense? To choose one method of interpretation over another, some argue, is an action: it affects how judges and officials will affect the real world. So interpretive choices might have to be justified the way actions are justified, namely on moral grounds.
These action-focused arguments prove too much. Just as a choice to say the Earth goes around the Sun is usually justified by whether or not it really does, a choice to say that the law provides thus-and-so is usually justified by whether it really so provides, not on the moral benefits of it so providing. Constitutional texts don’t just fall in our laps like manna from heaven, to be put to whatever uses might seem best; they often emerge from a process of enactment, with their content already determined in light of an existing legal system. The moral case for originalism, such as it is, rests on its being t
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