Thursday, June 7, 2012
"Originalism," aretaic jurisprudence, constitutions, and God: A response to Prof. Strang
I've learned much over the years from Lee Strang's indefatigable work on behalf of original-public-meaning originalism as the preferred or exclusively legitimate modality of interpretation of the U.S. Constitution. While I've consistently benefited from studying Strang's insights about how to think about law and its interpretation, I've grown ever more convinced (I was amply convinced even back in the late 1990s) that the costs of the originalism for which he and many others advocate are impossibly high to pay, viz., they make law impossible.
I was grateful, therefore, when the editors of the Fordham Law Review recently invited me to respond to Strang's new virtue-theoretic argument in favor of such originalism. My response to Strang is available here I should welcome comments via email on the merits or demerits of my reasons for refusing the invitation to be an original-public-meaning originalist. I would be especially interested in defenses of Larry Solum's "message in a bottle" account of (constitutional) law.
https://mirrorofjustice.blogs.com/mirrorofjustice/2012/06/originalism-aretaic-jurisprudence-constitutions-and-god-a-response-to-prof-strang-.html