John Mikhail’s answer to this question is that originalism has an originalism problem(!). According to Professor Mikhail, whose paper I mentioned in one of my previous blog posts (see below), most originalists end up applying their search for “public meaning” by selectively and inconsistently ignoring those parts and words of the Constitution that refer to natural rights. In addition, Mihkail’s paper contains two further observations that are worth commenting on:
1. First and foremost, Mikhail suggests that the best way of understanding of the founders “is that they were both natural lawyers and constitutional positivists” (p. 364, emphasis in the original). Why should the founding fathers be considered “constitutional positivists”? Because they advocated for written constitutions, both at the State and federal levels.
2. Secondly, Prof Mikhail poses an intriguing question, asking whether John Locke and Sir William Blackstone were natural lawyers or legal positivists, and makes the case that the work of both Blackstone and Locke fits the natural law tradition as well as legal positivism. In Mikhail’s words (pp. 363-364), which deserve to be quoted in full: “The answer, of course, depends on what exactly one means by those terms. ‘The state of nature has a law of nature to govern it’ certainly sounds like the claim of a natural lawyer. So do similar passages in Blackstone’s Commentaries. Yet Locke rejected the conception of innate moral knowledge that formed the basis of natural law as most seventeenth and eighteenth century writers conceived of it. And Blackstone’s definition of law as ‘that rule of action, which is prescribed by some superior, and which the inferior is bound to obey’ descended straight from Hobbes and anticipated modern positivism.”
That is the title of this short paper by John Mikhail, a professor at Georgetown Law School. (Hat tip: @lsolum.) Here are the first few sentences of Professor Mikhail’s intriguing new paper:
“Most originalists are legal positivists, not natural lawyers. By contrast, the [Founding Fathers], by and large, were natural lawyers, not legal positivists. A non-trivial problem thus appears built into the nature of originalism, at least as it is conceived by many scholars and judges. At bottom, originalism rests on a series of ontological and jurisprudential assumptions at odds with the belief systems of early Americans—the people who actually framed and ratified the Constitution.”
Suffice it to say, given my natural law background, I am going to add this paper to my reading list–as well as this excellent essay by Jonathan Gienapp on “Written Constitutionalism”, to which Mikhail’s paper is responding to–and will report back soon …
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