The Modest Place of Practical Reason within Originalism

<p><span>&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;The natural law tradition has experienced a dramatic revival in Anglo-American thought since the publication of John Finnis’ groundbreaking&nbsp;<i>Natural Law and Natural Rights</i>&nbsp;in 1980. &nbsp;More recently and---I argue, relatedly---there has been a “natural-law moment” especially—though not only—in the context of constitutional interpretation.&nbsp;</span></p> <p><span>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;One of the most exciting aspects of this revival is the dynamic character of the scholarship.&nbsp;&nbsp;Scholars working in this vein have engaged in robust debates on a variety of aspects and implications of the tradition.&nbsp;&nbsp;One of the most important debates is over the role(s) of first-order practical reasoning to ascertain the law’s meaning.&nbsp;&nbsp;Some scholars, such as Veronica Rodriguez-Blanco, have argued for a robust place for practical reason to ascertain the law.&nbsp;&nbsp;“The normativity of law explains how we engage and use reasons for actions …&nbsp;&nbsp;reasons for actions are necessarily connected to values and provide the grounds for legal directives and legal rules.”&nbsp;&nbsp;There are a variety of other positions articulated by scholars.&nbsp;&nbsp;For example, Professors Jeff Pojanowski and Kevin Walsh argued that, “[g]iven the wide range of morally acceptable constitutional regimes available to framers of a constitution, in many legal regimes there will be few, if any, instances in which first-order moral reasons will trump an interpreter’s second-order obligation to enforce the positive law.”&nbsp;&nbsp;</span></p> <p><span>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;One particularly important manifestation of this debate is in the context of constitutional interpretation of the United States Constitution.&nbsp;&nbsp;Of course, scholars have debated for decades whether and to what degree judges should use first-order ethical reasoning when they interpret the U.S. Constitution.&nbsp;&nbsp;In fact, one prominent articulation of the distinction between living constitutionalism and originalism is that living constitutionalists reject either (or both) of originalism’s fixation thesis or its constraint principle.&nbsp;&nbsp;Doing this would commit at least some, and perhaps most, living constitutionalists to judicial use of practical reason to interpret the Constitution.&nbsp;&nbsp;</span></p> <p><span>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;This Article makes three key moves within this debate.&nbsp;&nbsp;First, it describes how originalism’s own theoretical evolution, coupled with the revival of natural law in the Anglo-American world, allowed for a rapprochement between both.&nbsp;&nbsp;Second, it argues that originalism, best understood, has a modest place for interpreter practical reason, and that this is a&nbsp;<i>determinatio</i>&nbsp;of the American constitutional system.&nbsp;&nbsp;Third, it articulates four reasons that support originalism’s economical use of interpreter practical reason.&nbsp;&nbsp;To the extent my argument is successful, it provides an example of a successful, mature legal system that employs interpreter practical reason moderately.</span></p>