Lee J. Strang has produced a lucid and landmark case for originalism for which constitutional theorists, regardless of whether they agree, are in his debt. The case rests on two interlocking models of originalism: constitutional communication and law-as-coordination. These work together insofar as the constitutional framers used the medium of a written constitution to communicate to each other, the document’s ratifiers, and future generations of Americans how to overcome the coordination problems endemic to any society of more than minuscule size.
Undergirding this analysis is perhaps Strang’s most important and welcome innovation: the introduction of Aristotelian virtue ethics into constitutional theory. This plays out in several ways, most especially in the basic notion that originalism is the best means of executing the law’s function of coordinating activity that facilitates a common good and provides for human flourishing. This intriguing fusion of political and legal philosophy opens several avenues of insight, including the personal virtue of the judge whose originalism embodies the virtues of both justice-as-lawfulness (p. 131) and promise-keeping (p. 302).
Drawing on Aquinas’s explication of the Aristotelian tradition, Strang persuasively notes that the Constitution reflects its framers’ and ratifiers’ best prudential judgment as to how to overcome the coordination problems that emerged under the Articles of Confederation and that are inherent in a complex society. Strang draws the reader’s attention to the importance of positive law in fostering social coordination. His constitutional theory, in turn, fulfills natural law “because it best secures the background conditions under which Americans can pursue their own individual human flourishing” (p. 221).
Strang’s argument is innovative, persuasive, and written with masterful clarity. For purposes of fostering a conversation, I raise a handful of points on which we may disagree, none of which impair his underlying thesis.
Strang offers a deliberately “thin” model of the common good that is “agnostic about many important though controversial issues” and that “does not require one to accept more controversial claims about human nature and metaphysical propositions” (p. 225). Instead, it consists of establishing conditions in which people can pursue Aristotelian happiness, or eudaimonia. This is thinner than Aristotle’s account, which is not agnostic as to the content of the happy life. Strang’s account might be said to be closer to the public-square neutrality of John Rawls than to the robust theories of the good that characterize the ancients. That, of course, may be the best a sprawling and pluralistic society can do, but one wonders to what extent it is entitled to the label “Aristotelian.”
A thicker Aristotelianism consisting of shared goals and a genuinely common good—which The Politics describes in terms of what is truly common, rather than as what enables everyone to flourish individually—need not be wholly dismissed. A free society cannot impose a thick conception of the good, but it can set conditions that are more than agnostic about it. For example, blue laws aim to coordinate social activity but do so with a substantive view toward the good life. So do moral laws in general. Indeed, on Aristotelian terms, the political activity involved in constitutional interpretation is itself ennobling.
Whereas my own analysis emphasizes the primacy of politics, nobly understood, in determining constitutional meaning, Strang supplies a standard for allocating this interpretive authority. Originalism provides what he calls “closure rules” that reduce “underdeterminacy” in constitutional meaning (p. 64). Strang assesses the extent of the determinacy of constitutional meaning on both metaphysical and epistemic grounds. He argues that interpretive tools used at the founding render the Constitution metaphysically determinate. In other words, it has a single meaning, and questions about it have right answers. However, this meaning may not be epistemically accessible; that is, given the limits of human knowledge, we may not be able to determine with certainty what the metaphysical meaning is, as was the case in the controversy over the National Bank in the first Congress (pp. 77–82, ff.). In cases in which epistemic determinacy can be achieved using the tools of legal reasoning, judges establish its meaning. In the “Construction Zone,” when closure rules cannot reasonably establish constitutional meaning, Strang would defer to Congress.
These categories of metaphysical and epistemic determinacy are an important and new contribution to constitutional theory. But the work needed to get from metaphysical to epistemic clarity may involve more than the tools of legal reasoning; conversely, limiting epistemic determination to those tools makes constitutional interpretation the work of lawyers and not citizens. This assumes a complexity of both constitutional meaning and the process of determining it of which I am not wholly persuaded, as much as I like Strang’s categories. Two points help illustrate this doubt. One is that if the Constitution’s meaning even on many seemingly basic questions is so obscure as to require the intervention of legal theorists, one must doubt the authority of the popular process of ratification on the grounds that the ratifiers could not have fully understood the document. Second, Strang correctly cites Madison’s Federalist 37 as the focal case of epistemic undeterminacy (p. 116). But when Madison calls for constitutional meaning to be “liquidated and ascertained through a series of discussions and adjudications,” he does not refer solely to judicial authority, as Strang seems to suggest. Madison’s later writings, most especially his concession of the constitutionality of the National Bank during his presidency, indicate he refers to political authority as well.
On a related note, Strang says a great deal about how Aristotelian judges would act. This account of virtue ethics in jurisprudence is persuasive, but it would be helpful to hear more about how we are to cultivate and find these judges. Otherwise, as in the old story about the economists stuck in a hole who assume a ladder to escape, the argument risks taking on an “assume an Aristotelian” character. If we could assume Aristotelians, there would be fewer questions about judicial authority. But the opposite is closer to the case: judges are human beings with power, and although it would be preferable to render them Aristotelian so that they abide by the law and their oaths, the constitutional order is unwilling to assume they will do so. How might Strang encourage good judicial behavior and, crucially, correct abuses of judicial authority? These questions, to be fair, may lie outside the scope of his study, which aims to set a normative standard rather than to specify the conditions of its attainment. But a regime based on how human beings with power actually behave must, at some point, grapple with them.
This becomes especially important given Strang’s otherwise persuasive account of how to deal with nonoriginalist precedents. Strang calls for preserving “some nonoriginalist precedents” not only because of the importance of stare decisis to “rule of law values” but also because some of these precedents are “substantively just” (p. 125, ff.). This latter point—substantive justice achieved despite and not because of original meaning—leaves enormous discretion for judges to import their personal preferences into case law. An accompanying account of why we should be confident in judges’ ability to do so is therefore important.
With respect to originalism generally, Strang’s related accounts of communication and coordination compellingly justify constitutionalism. The question is whether they can provide an account of our Constitution. Put otherwise: If a different constitution could be said to coordinate social activities and encourage human flourishing better, do we bear any obligation to the Constitution of 1787? This is an important question in times in which the Left calls for abolition of the Electoral College and the Right seeks an Article V convention for purposes of constitutional revision. On Strang’s account, these efforts may be imprudent, given his convincing argument that the Constitution of 1787 was the product of careful deliberation, compromise, and public approval. But just as Strang’s judges bear an obligation of promise-keeping rooted in their oaths of office, does any moral standard bind citizens to our Constitution?
In one sense, Strang’s communicative constitutionalism could provide a transgenerational account of constitutional obligation. So could his observation that “authority is pervasive in human life; it is natural” (p. 249). The question is whether that authority can transcend generations, as in James Madison’s observation that the efforts of past generations impose “a charge against the living.” By contrast, Strang’s argument for originalism appears to be rooted in utility in the here and now: the Constitution does not bind us to tradition, an account that could be anchored, say, in the “mystic chords of memory” of Lincoln’s First Inaugural or in the transgenerational social contract of Burke’s Reflections. Instead, this Constitution should be interpreted according to its original meaning because that best conduces to social coordination—a precondition for human flourishing—today (p. 278).
Again, this importation of Aristotelian philosophy into constitutional theory is innovative and useful. But can any Constitution endure if the reason for hewing to its original meaning is that it is good for us today? Aristotle suggests not: in The Politics, he warns against even salutary changes in the law that yield marginal improvements because they undermine the habituation on which the more fundamental attribute of obedience is based.
It is unlikely that the framers conceived of the perfect Constitution; on the contrary, one of Strang’s more important and convincing points is that the Constitution is “the result of prudential determinations about how American society could best pursue human flourishing, under the circumstances. For all or nearly all of the fundamental coordination problems faced by the Framers, there was not a uniquely correct resolution to the problem” (p. 282). Given the possibility, perhaps even likelihood, that new conditions could warrant new prudential determinations, what if anything obligates us to this Constitution? This is a separate question from whether whatever constitution prudentially settles coordination questions should be interpreted according to its original meaning, a point on which Strang’s analysis is impeccable.
The same may be said of Strang’s analysis generally. The points of conversation I raise here should not detract from his achievement, which is considerable. One suspects that whatever divergence there may be between our views is the result of undertaking different projects: one on constitutional meaning (Strang’s) and another on constitutional authority (mine). Points of convergence are likely far more extensive. It is a privilege to be placed in Strang’s company for a conversation about them.
