We Can Do Better Than the Framers’ Constitution

Adrian Vermeule’s recent essay in the Atlantic sketches an alternative to originalism, which today is the dominant theory of constitutional interpretation amongst conservatives and the one associated with the Supreme Court justice after whom my law school is named. In its place, Vermeule proposes a “common good” paternalism that candidly enforces conservative principles about hierarchy, solidarity, and personal morality.

As provocative as this is, Vermeule nevertheless pulls his punches. Rather than arguing that conservatives should reject originalism, he might have argued that they must do so if they wish to advance a morally compelling argument. For originalism, after all, is simply another form of legal positivism, the doctrine that places a Chinese Wall between what is and what ought to be the law. Originalists are the children of John Austin (1790-1859), the English legal philosopher who defined the law as the sovereign’s command backed by force. As a utilitarian, Austin thought that laws might serve the principle of utility or not, that is, they might be good or bad, but in either case they’re still laws if enacted by the King-in-Parliament.

As a form of legal positivism, therefore, it makes no sense to say that courts should follow originalist principles, unless the alternative is expected to make things worse. And that is what originalism comes down to. Its plausibility as a rule that deserves to be followed rests on a rejection of its principal alternative—the left-liberal egalitarianism and libertarianism that informs much of our constitutional law—and an assertion that those are the only choices before us.

As such, originalism is necessarily a political creed that seeks to hide its politics. But as Karl Llewellyn noted, covert tools are never reliable tools. When the hidden motives are exposed, the originalist can be ridiculed as insincere, and that is what liberals have done in exposing his biases.

The conservative has a sense of human frailty and distrusts laws cast in stone, including constitutions.

If originalism commends itself, then, it must be because the Framers’ Constitution is morally superior to today’s Constitution. That explains the temptation amongst some originalists to discover natural law principles in the Constitution. If one reads the Framers’ debates, however, you’ll mostly search in vain for Thomism or Lockean natural rights. Nor can one argue that, sub silento, they were there all along, that they were in the air that everyone breathed. The problem here is that you can sneak in almost anything you want on that argument, Christianity for example. Worse still, many of the Framers espoused views that were seemingly inconsistent with natural law principles. Think here of James Madison’s sense of fallen humanity, Gouverneur Morris’ cynicism, and John Dickinson’s Burkean conservatism.

Should you still wish to argue for the moral superiority of the Framers’ Constitution, pray what have you to say about the Fugitive Slave Clause in Art. IV, sec. 2, cl. ii, which the Committee of Eleven snuck into the draft constitution on Sept. 4, 1787.

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labor, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

The Clause, along with a 1793 statute which established rules for the capture of escaped slaves, did not require Northerners to return escaped slaves to their masters, but such duties were imposed by the 1850 Fugitive Slave Act. This infuriated abolitionists, and in 1854 William Lloyd Garrison burned a copy of the statute at a public meeting in Framingham, MA. He then held up a copy of the Constitution and burned it as well, calling it “a covenant with death, and an agreement with hell.” Henry David Thoreau was on the podium, and spoke next. Taking aim at legal positivism, the author of Walden said that “Law will never make men free; it is men who have got to make the law free.”

Today the written Constitution includes the Reconstruction Amendments that nullified the Fugitive Slave Clause. But if we thought that Garrison was not altogether wrong in 1854, does that mean that the Framers in 1787 were something less than oracles of the law, and became so only in 1865?

Other Framers’ beliefs seem either questionable or very dated now. There are few people today, conservatives included, who share the Framers’ inordinate fear of democracy. The Framers did not think presidents should be chosen in popular elections. They thought that states had the right to secede from the union. And while they thought that a separation of powers was necessary to preserve liberty, the evidence today is that parliamentary regimes are freer than presidential ones.

In sum, originalism is a form of legal positivism and as such is devoid of moral force, except as a covert method of subverting a dominant left-liberal tradition. But originalism’s insincerity condemns it, and like Vermeule, the honest conservative should openly oppose left-liberalism (even if there are few people who’ll be tempted by Vermeule’s Catholic Integralism).

Originalism is a radical creed and as such is anything but conservative. Instead, the conservative has a sense of human frailty and distrusts laws cast in stone, including constitutions. The want of reversibility—both of constitutional text and of legislative acts—is indeed the Constitution’s great problem. Our constitutional system operates on the assumption that bad bills will not survive the winnowing they receive through the need for approval by House, Senate, and White House. But that has not saved us from wasteful laws. And in any event, the conservative—apt to prefer ex post reversibility under a parliamentary system to ex ante screening under the separation of powers—will think this an example of Hayek’s fatal conceit. Similarly, the conservative will be unwilling to think that one group of people in 1787 got it exactly right, and that one needn’t attend to what wise jurists since then have added to our understanding of the Constitution. You can be an originalist or a Hayekian, but you can’t be both.

A conservative in the mold of John Dickinson will mistrust grand theories and prefer to be guided by experience. He’ll not think that anyone has a privileged understanding of the Constitution—not the Framers in 1787 and not the great jurists who since then have ruled on it. He’ll know that, given the barriers to formal amendments, change must come incrementally, from the bench. Without advancing radical new proposals, and without assuming that existing constitutional principles cannot be improved upon, he’ll expect the conservative jurist to curiously test existing laws, identify the ones that need revision, and correct them. Which is what wise judges have always tried to do.

Reader Discussion

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on April 08, 2020 at 09:14:57 am

"And while they thought that a separation of powers was necessary to preserve liberty, the evidence today is that parliamentary regimes are freer than presidential ones." Would you please define what you mean by freedom, and then give the evidence that parliamentary regimes are freer than....

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Svetozar (Steve) Pejovich
on April 08, 2020 at 10:13:21 am

Professor Buckley doth love his theme: Viewing "the American constitution as an example of the planner’s hubris" he argues that Montesquieu's separation of powers does not work, a parliamentary scheme would have been superior and that fluidly interpreting our failing constitution is the road to parliamentary-lite salvation. And Professor Buckley doth so love his theme that he appears to me to repeat it today and say again today in L&L the essence what he wrote here on November 12, 2014 in his excellent essay "The Fatal Conceit."

He has changed his straw man, however. Then it was the inherent imperfection of a constitutional structure destined to break down, built as it was (according to Buckley) on a "fatal conceit," which Buckley said then was the consequence of the "fallacy of subjecting society’s rules and institutions to the litmus test of logic and rationality." He assaults the same constitutional ramparts today while knocking down a new straw man, that of the defenders themselves of constitutional originalism who, per Buckley, are guilty (without the founders' hubris?) of the same fatal conceit (Buckley does love to abuse Hayek's book title, then as now) of seeking through their interpretative method to perpetuate the inherently flawed original design of a constitutional structure arranged in theory not to break down, whereas "it (has in fact) all turned into dust."

One is inclined to say of Professor Buckley's repetition of much of his earlier bashing of our original, if lost, constitution, "Yada, Yada, Yada," or "been there, read that," but Buckley is such an engaging, talented writer, so fun to read, that, with a catchy new title and his colorful variations on a theme, it's well worth the time to re-read his cry, the beloved lost parliament.

As for the interminable, increasingly insufferable academic wrangling over originalism, I do say, "Yada , Yada , Yada" and ''been there, read that," and I leave to thrashing about in that "political thicket" the competent likes of McGinnis, Rappaport and others of the cottage industry who are paid to do so and who, if the judges who decide such matters are to be believed, appear to have won the debate.

Perhaps it's that frustration that drives Professor Buckley to a reprise.

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on April 08, 2020 at 11:23:59 am

A mutual acquaintance informs me that Buckley has a refined "sense of humor." Perhaps, he is simply humoring us as he simultaneously proselytizes for a Parley-mentary form of governance as the best form while also declaring that it is both clearly AND properly the duty of the Judiciary to correct for the deficiencies of constitutional government. It would appear that Buckley would have us believe that no 'deficiencies" are to be found within a Parley-mentary system. That, sir, is indeed "laughable"

What is even funnier is willfully and knowingly transforming constitutional jurisprudence into "common law" judging.

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on April 08, 2020 at 12:46:30 pm

Oops, forgot this:

"The king in Parliament is Supreme."
WE are familiar with this statement of sovereignty within the British *constitutional* order.

Let us consider that assertion in light of the humorist Buckley's avowed preference for "Parley-mentary' governance. In previous writings, Buckley has expressed a preference for Parley-mentary government BECAUSE of its ability to rapidly and THOROUGHLY implement the policies and programs of the majority Party. Bollocks to all that 'deliberation", compromise and separation of powers "tosh" (B.S. for we Yanks). Let the Parley-mentary majority do as it see fit. after all, is not the Parley-ment *Supreme*? - and it is THEIR will which shall and OUGHT to be implemented.
Contrast that with the sloppiness, tardiness and cumbersome realities of American constitutional governance and those who have a clear preference for efficiency, and relatedly, legal positivism, have all the tools that such an argument requires, albeit one insufficient to the task of justifying such a radical change in constitutional understanding and order.
Buckley apparently fails to understand that in American constitutional system, 1) the People are Supreme, 2) government is expressly and legally constrained, 3) those powers delegated to it are (theoretically) limited, 4) those "unbearable" constraints on active government, as Buckley would term them, are both intentional and quite functional, 5) and, actually lead to a more settled order as succeeding Legislatures are not quite so ready, nor able, to quickly and radically overturn their predecessors programs and policies.
Buckley has specifically claimed the ability of Parley-ment to quickly implement the new majority's program. Again, this praise is predicated upon a false understanding of sovereignty. Only those who view the legislative as "sovereign" will so loudly (and longingly) extol the virtues of the Hobbesian Will of the Legislative.
Nope, I'll take my sloppy, confused conclave of elected "cardinals" convened under a constitutional order that compels them to understand that they are NOT Sovereign.
Even better that their confusion and partisanship may prevent them from imposing ever more obligations upon their "Sovereign."
"That government is best which governs least" - consequently, there is much value in "inefficiency".
BTW: We may consider the value of efficiency whenw e consider how "efficient" the Judicial Branch is, in particular, when some no-account political hack posturing as a District court Judge issues a NATIONwide injunction.
Now that is the efficiency of which the humorist Buckley is so enamored.

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on April 08, 2020 at 11:30:06 am


To anyone who claims that it is possible to make a test for a virus, before one can know, in essence, what that virus is, I say bologna! The World Health Organization and possibly those working on vaccines or studying various viruses in the Wuhan lab would have that information, yet there was no investigation and there has been no investigation, from WHO, and those who support the globalists who deny The Author Of Love, Of Life, And Marriage, through their worshipping of “mother earth”, aka pachamama.

The World Health Organization had no problem implementing the “trial run”, yet that chose not to investigate the Wuhan lab? Why?

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on April 08, 2020 at 13:05:26 pm

Nancy has the right wrath albeit directed at the wrong essay.

President Trump, God bless him, is onto the Commie-based WHO and will now disable US funding of that ally of the Chinese Communist Party in the "Red China War Against World Health and Stability."

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on April 08, 2020 at 16:21:16 pm

In the time of The Plague, perhaps a little generalized wrath is in order especially if directed at the ChiComms or their minions in WHO,

Go for it, Nancy!

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on April 08, 2020 at 13:05:32 pm

And to be clear, in order to determine if the “escape”, of the virus was intentional, accidentally premature of intentional, or accidental with no intent to do harm, the question The World Health Organization should ask of the Wuhan Lab is:
Where you aware of the connection between hepcidin, ferritin, and iron overload in the elderly, those with immune complications, the obese, and people of Northern European descent with hemochromatosis, those who are most vulnerable to this disease?




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on April 08, 2020 at 13:16:53 pm

Oops! That last comment should have been placed here: https://lawliberty.org/pandemics-are-the-health-of-the-state/, which I suppose a more accurate title might be:
Pandemics reveal the Health Of The State, The Church, And Society.



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on April 08, 2020 at 15:11:22 pm

It is a point well worth making: that any written Constitution derives a good bit of its legitimacy from a form of legal positivism. To some extent an appeal to anything "in writing" must do that. Likewise, it is almost always -- or more likely, ALWAYS -- the case that anything done by imperfect and flawed humans beings can be improved upon. One need not consult Augustine to figure that out. Nor does one need him to determine that anything done by humans can be made worse. The Framers felt that the Articles of Confederation needed improvements, and so they wrote the Constitution. One might well debate whether subsequent amendments were all improvements, but it is hard to argue that they were not all changes. Likewise major Supreme Court decisions alter the meaning and implementation of constitutional provisions, for better and for worse. Limiting the range of justices using their own preferences means giving the words of the Constitution more weight. And yes, that is a subtle form of legal positivism, for which there may not be a wholesale and comprehensive alternative.

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Robert Schadler
on April 08, 2020 at 21:56:34 pm


Agreed - wholeheartedly.
Moreover, we must recognize that Constitutions, not unlike Laws, are quite often, if not principally, the result of political compromise. As I have been fond of saying these many years, "The founders may be more properly termed, *The Crafters* as it was their deliberations / decisions that *crafted8 the compromise that came to be known as the US Constitution.

Perfection - of course not!
As any sensible statesman of that time , or even this time, understands that pursuit of perfection in political orders leads to naught but the tyranny so frequently embraced by the ideologue.

A well built house, upon closer inspection, does inevitably reveal some imperfections. The Craftsman can only hope that these slight defects may be remedied. I belive that our Crafters both understood that and provided for it - see Article V AND NOT Juridicial Legislating.

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on April 08, 2020 at 15:12:38 pm

"Which is what WISE judges have always tried to do"?? "...identify the (laws) that need revision, and correct them"?? No, emphatically. It is the function of the legislature to revise and correct, not the courts - whose sole function is to determine the constitutionality of laws, not to correct them; or even to identify laws needing revision. Buckley's support for "wise" judicial activism ruined my day.

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mike geanoulis
on April 08, 2020 at 22:30:03 pm

When Josef Pieper Asked Carl Schmitt About the Common Good.
On the very first evening I asked him why, in his book on “the concept of the political” he had not written a syllable about the bonum commune, since the whole meaning of politics surely lay in the realization of the common good. He retorted sharply: “Anyone who speaks of the bonum commune is intent on deception.” Of course it was no answer; but it had the effect of initially disarming his opponent. (From Josef Pieper’s autobiography, via Incudi Reddere)

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Woody Jones
on April 11, 2020 at 20:09:03 pm

The constitution is written and instituted for the common good, therefore anything done the any political entities so descript in the constitution that is not in accordance to its limit are inherently against the common good. Politicians can declare that killing babies are for the common good, it do not make it immoral and unconstitutional.

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on April 10, 2020 at 13:19:56 pm

Originalism is the only approach that allows the people control of their political system. All other approaches make whoever decides what will be put in the place of the Constitution the only actual holders of political power. (In our current situation, the Judicial Branch is essentially legislator as well as judge.) The Constitution allows itself to be changed. If someone thinks it is undesirable as written, let him work to change it through the means allowed in the document. Any other approach than Originalism erases the Constitution and puts the rulers' desires in its place. This is why, at present, we live in a non-constitutional age. It is only necessary to watch Congress, in its committees, discuss matters of state to see that there is no place in their minds, or plans, for any Constitution. Without a sea-change in political culture, I fear that our national system of government is gone already, never to return.

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Paul S. Russell
on April 10, 2020 at 20:14:13 pm

The dustbin of history is lined with people who thought they could write a better Constitution than the framers. We have a mechanism to do this called a Constitutional Convention. The author should join a movement to call such a convention and contribute as he is able. That's why there were Framers in the plural. It's a compromise, not a takeover. That's why it's lasted as long as it has.

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David Whitney
on April 11, 2020 at 11:02:46 am

Originalism was introduced into the law by Antonin Scalia while a teacher of law at the University of Chicago. Simply he adopted the college Great Books format of reading original materials as a primary mode of teaching. Justice Scalia was also noted to have said that only Chicago, Harvard and maybe one more law school were intellectually challenging to him. Perhaps, George Mason Law School? In addition the University of Chicago has a free speech code which helps formalize a study of original thinkers.
Now if we look for a group that later wrote and adopted various future types of Constitutions, we may also, by their actions, find out more about our originality. What if a group of men discussed the future constitutional history of America while in a seminar like situation when further military action by the group is months away
The group I am talking about were dining with Martha and George Washington at Valley Forge. Afterwards there was further talk as a group with General Washington. He talked of the Washingtonian Constitution where he later had his lawyer, Edmund Randolph, propose a Virginia Plan and then as Chairman of the Convention allowed himself to vote with the Virginia Delegation on each matter. He basically saw himself modeling Augustus Caesar with a Senate, House of Tribunes and a judiciary. Washington stressed executive control of the military and control over foreign policy with a veto power over the legislature. Augustus proposed this in 27 B.C.E. and created a Pax Romana. Hopefully Washington was trying to do the same from this model.
Now Washington could have discussed with his staff George Mason’s Bill of Rights and Thomas Jefferson’s Prologue to the Constitution of the Commonwealth of Virginia with his staff. Jefferson utilized his Virginia constitutional Prologue for the Declaration of Independence. This begins the Jeffersonian Constitution of the State Democracies such as adopted by John Adams and his Commonwealth Constitution of Massachusetts.

And we have an unwritten Constitution of reports to the legislature by Alexander Hamilton, laws concerning the Administrative State initiated with customs and postmasters by Alexander Hamilton, and state contracts and incorporations by Alexander Hamilton. These state incorporations of our Capitalism are for the first state bank, the Bank of New York, now Mellon Bank, further risk taking organizations such as marine, life or property insurance companies as well as the 1793 stock market in New York City. The progeny of Hamilton reaches a Third unwritten Constitution that like the British took from legislative acts, state contracts, and investment capital as well as Reports to Congress.
The state constitutions of Jeffersonian democracy talk of equality and free education with property rights supporting the equality of man such as in the removal of primogeniture. The Hamiltonian Constitutions speak of the need for a British style bureaucracy subordinate to the Secretary of the agency they work for or for as another layer of a deep state. The Constitution of the Republic stands for projecting benevolent power over a growing country coordinated by one individual. These constitutions compose the rules of law for various elements of the Republic, its agencies and state Democracies.
At the meetings, Jefferson’s future law student, James Monroe will later draft the potential for the Jeffersonian Constitutions for the State Democracies as Chair of the Committee producing the 1785 and 1787 Northwest Territorial Ordinances. At the table was Alexander Hamilton who prefers the Unwritten Constitution of the English based on written legislative acts that reach Constitutional Proportions. Even the young Marquis de Lafayette with Ambassador Thomas Jefferson wrote the French Declaration of the Rights of Man in 1789. By the way, James Monroe will help author the French Constitution of 1795 for which he was unanimously granted French Citizenship making it easy to later pick up French held real estate. To consolidate constitutional doctrine on a federal level, young John Marshall became the Chief Justice of the United States. Marshall took up the role of Alexander Hamilton in stressing national recognition of state made contracts. By the way Aaron Burr is a sometimes guest as he is guarding the roads to Valley Forge and may have missed some of the conversation. Lafayette went missing when he returned to France to lobby successfully for French entrance in the war.
These citizen-soldier-scholars are also our original Social Justice Warriors. Aren’t they role models originalism in other fields writing constitutions as much as they did. Author Buckley has not noted their role as Framers of the first Constitutions of modern times. Three of the six named did utilize the veterans exceptions to become lawyers, Hamilton, Marshall and Burr, while Monroe worked 16 hour days under Jefferson’s directions in his apprenticeship. No one can debate their qualifications.
Years after reading Jefferson, George Mason, Tom Paine and participating in “Cato” in 1777, we have Monroe in 1788 as an anti-federalist supporting George Mason at the Virginia Convention. He had been wait listed for the Philadelphia Convention, but Washington or Randolph forgot to call him when one delegate from Virginia left.
These men had survived the wounds and sounds of battle for which they positively and heroically led themselves. Perhaps if one was a military historian, one would appreciate the depth of their original thinking and their participation in the dinner table as to the future of the United States.
Almost 50 years later, Lafayette, Marshall and President Monroe could dine in the White House and be proud of their work which is written up in de Tocqueville’s Democracy in America and its limited federal government. If only there was a pod cast. Hamilton, Monroe, Burr, Marshall, and Lafayette were all officers of the Revolution who volunteered to stay behind with Washington at Valley Forge and who turned out to be men for all seasons.
Shame on you, as Greta Thunberg says, for not mentioning the names of these acolytes of Washington and foundational fathers of America and even of world constitutions. So as a plum I would add Col. George Mason as one of the great military minds of the Revolution as an equal to his fellow Colonel of militia, George Washington. The proof was found years later when George Rogers Clark complemented Col. Mason for his help in doubling the size of the United States. One can add the production of the Continentals of Virginia, Delaware and Maryland as well as the light-horse of Harry Lee and the long rifles of Daniel Morgan. Each Southern State were to claim their Continentals were the best. Basically the theory projected is from medicine that if many organs are malfunctioning then it is likely one disease has caused each of the problems.
Washington was aware his constitution was limited and would produce a slowness in producing new legislation. In the future these limitations would be hopefully overcome by a group such as his dining room companions who themselves wrote constitutions to be copied.

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on April 11, 2020 at 11:13:52 am

Legal positivism is necessary to have any meaningful governing principle. To enshrine inalienable rights in individual persons and preserve their right to self-government as the "Chinese wall" of legal positivism is the only way to preserve our unique freedom and opportunities. The loss of the bedrock of our nation's founding principles would result first in mob rule / anarchy and last in tyranny.

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JC Gwin
on April 11, 2020 at 15:02:13 pm

The good professor is quite good at setting up strawmen to swat down. Not even the founders thought the constitution perfect else why would they have put in a procedure to amend it? Is the amendment process not available to us even now if we should, as a body politic, desire to use it? I know many conservatives who believe, even today, that many current ills are a direct result of an excess of democracy and that the framers were very wise to oppose and to fear it. The public has relatively recently come to the realization that they can vote themselves largess from the public fisc and this result of "democracy" could very well result in the bankruptcy of the republic and it's dissolution.
There is no conflict in believing in originalism and also believing that the constitution can be improved upon except on the authors mind.

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on April 12, 2020 at 07:20:16 am

Perhaps it is not the Framers but Mr. Buckley who isn’t comfortable with democracy. How is it democratic to allow an unelected and essentially unaccountable elite legislate for what they insist is the common good, which is one day Plessy and another is Brown?

The Constitution is designed to be modified when the will of the people, manifested through their elected representatives, is sufficient to do so. Judicial activism of whatever political flavor is a bait and switch scam run by elites. The Constitution plainly says x but then, one day, folks are told it says y, and moreover, anybody who thought it said x is variously a miser, racist, Communist, homophobe, miser, xenophobe, Luddite, or, unkindest cut off all—OLD.

The Framers didn’t think the Constitution was perfect. They themselves, as duly elected representatives of the people, amended it 12 times in a span of 15 years,

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Scott Pierce
on April 15, 2020 at 15:49:40 pm

"Rather than arguing that conservatives should reject originalism, he might have argued that they must do so if they wish to advance a morally compelling argument. For originalism, after all, is simply another form of legal positivism, the doctrine that places a Chinese Wall between what is and what ought to be the law. Originalists are the children of John Austin (1790-1859), the English legal philosopher who defined the law as the sovereign’s command backed by force."
But there is a great deal of disambiguation needed here. It is a philosophically compelling - or better, persuasive - argument that is needed and in the end some form and degree of faith will need to subtend and infuse such a philosophical argument for any such argument will be hemmed in by acknowledged aporetic limitations. Little or nothing will be truly compelling, in the more forceful sense of the term. Hence it is a form of natural law - reflected in the Declaration - that subtends our perfectly sound Constitution.

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Michael Bond
on April 12, 2020 at 16:34:53 pm

[…] calls for abandoning originalism, namely F.H. Buckley’s attack on originalism in an April 8th essay in Law and Liberty titled “We can do better than the Framer’s Constitution.” From the […]

on April 17, 2020 at 06:29:10 am

[…] Can Do Better Than the Framers’ Constitution,” argued Frank Buckley in this space, once again pressing his well-known preference for parliamentary systems over […]

on April 21, 2020 at 06:26:31 am

[…] contra F.H. Buckley, it is not the case that “if originalism commends itself, then, it must be because the […]

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