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09/30/2017

Peter Bayer: Deontological Originalism
Michael Ramsey

Peter Bayer (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Deontological Originalism: Moral Truth, Liberty, and, Constitutional 'Due Process' on SSRN. Here is an excerpt from the abstract:

This article offers what has been needed but lacking in modern legal commentary: thorough, meticulous and timely proof that, pursuant to principles of Originalism, the Constitution - the highest law of the United States - mandates that any governmental act is unconstitutional if it is immoral.

Specifically, this article returns fundamental constitutional jurisprudence to where it rightly was until roughly a century ago; and, where, recently, it has been returning in the form of Supreme Court substantive due process precedents based on human dignity. The overarching concept, which I call Deontological Originalism, asserts that both the Founders of this Nation and the Reconstruction Congress properly believed in natural rights derived from principles of natural law. Accordingly, they sought to enforce through the Constitution, the natural rights philosophy set forth in the Declaration of Independence. Most importantly, natural law and resultant natural rights are deontological, that is, they enforce a priori, immutable moral precepts that descend not from human imagining but from the natural order of existence, what the Declaration denoted as, “Nature and Nature’s God.” That is why, under the Constitution, any and all immoral governmental conduct is unconstitutional regardless of bureau or actor - legislative, judicial, executive or administrative - and regardless of level - federal, state or local.

Unlike articles that aver similar ideas, this writing presents Deontological Originalism as a metatheory, meaning, it expounds at once essentially all fundamentals, and their respective proofs, as indeed any work defining and defending a theory of Originalism should do. Metatheory accounts for this commentary’s length; but, frankly, it is time that one law review article presented a meta-theoretical perspective given the exasperated skepticism and postmodernist complacency most often greeting serious assertions that the Constitution enforces natural law and, therefore, the bench and bar must become “natural lawyers” when addressing constitutional rights. After thirty years of perhaps sporadic writings addressing many of the relevant aspects, I offer Deontological Originalism, a venture proceeding from the utility of Originalism, to the meaning of Deontology, to the intent of the Founders and of the Reconstruction Congress, to the deontological principles of Enlightenment philosopher Immanuel Kant, to modern due process dignity theory enforcing Deontological Originalism through Kantian morality, culminating in the Supreme Court’s bravura rulings requiring that Government accord same-sex marriage the full and equal legal status accorded opposite-sex marriage.