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10/19/2020

What Has Athens to Do With Philadelphia?
Chris Green

I have posted What Has Athens to Do With Philadelphia?, part of a Faulkner Law Review symposium on Lee Strang's Originalism's Promise: A Natural Law Account of the Amertican Constitution, to SSRN. Here is the abstract:

Lee Strang’s Originalism’s Promise: A Natural Law Account of the American Constitution gives a smooth, integrated account of all of the major issues of constitutional theory. He promises an account of the Constitution that simultaneously fits (a) the law of the early republic, (b) the precedentially-governed law of today, and (c) the moral principles of the natural law. While I agree with Strang that the meaning expressed by the text according to its original legal conventions morally binds officeholders today, there are problems if we too-tightly integrate the three realms of moral reality, the Constitution itself, and precedent. We can sharply distinguish them based on necessity and time. Moral reality and the nature of human flourishing—i.e., the sorts of things investigated by the philosophers of Athens and their intellectual descendants—are necessary, the same in every possible world that humans might inhabit. Our Constitution, by contrast, while it is fixed and unchanging, has the nature it has only because of the historically contingent events in Philadelphia in 1787, and it remains our Constitution today only because of the contingent practices of those who claim fidelity to it. Finally, the precedentially-embodied law of today is not just contingent, but properly changes; officeholders at different times and with different roles will properly apply different evidentiary standards to different evidence.

Making this three-fold distinction would promote both moral candor and constitutional fidelity. The Constitution of the Founding obviously did a very poor job of coordinating enslaved Americans’ interests in human flourishing with others’ needs. But officeholders today still swear to defend that same Constitution. Instead of an explanation of why the Constitution has always promoted human flourishing, we need the moral norm against oath-breaking. Instead of filtering precedent morally, we need a moral requirement that officeholders stay silent about the Constitution unless they know whereof they speak, i.e., with enough evidence given their particular roles and stakes.

As always, comments are welcome!