Isaiah Ogren (Yale Law School) has posted Interpretation, Democracy, and Common Good Constitutionalism on SSRN. Here is the abstract:
Common Good Constitutionalism critiques originalism and seeks to orient legal interpretation around the principles of the “classical legal tradition.” Much of the criticism of CGC has come from individuals who contest its underlying empirical predicates—whether any such thing as natural law exists in a meaningful form in our law—or at the level of base morality. The former reject CGC based on the quality of its archival research. The latter reject CGC on human rights grounds. This Article takes a different tack and criticizes CGC as a theory of law meant to guide judicial behavior. While CGC justifiably lays interpretive dysfunction at the feet of some flavors of originalism, it turns out that CGC falls prey to the exact same issues. Because CGC requires that the universe of acceptable interpretive inputs be closed in order to vindicate its natural law conception of political authority, but this rigidity leads to interpretive dysfunction, CGC writes a theoretical check that it cannot cash. Additionally, and relatedly, this historical rigidity, along with CGC’s purely instrumental account of politics, ossifies into a predisposition against democratic choice, giving us both theoretical and normative reasons for rejecting it as a plausible interpretive theory of American law.
