Neoclassical Theory of Natural Law: a normative justification for originalism?

How a theory of constitutional interpretation crucially based on the importance of the positive norm’s text be reconciled with natural law? This is one of the most pressing issues in the current constitutional discussions among conservative law scholars in the United States. However, its importance cannot be confined only to the American debate. In fact, adhering to Böckenförde’s view that every theory of constitutional interpretation is also a theory of the constitution, formalist theories of constitutional interpretation may generally appear best suited to represent the legal spirit of liberal constitutionalism. It therefore seems important to delve into the American quest for a normative and natural law-oriented justification of constitutionalism. The primary foundation of originalism, the now dominant theory of constitutional interpretation in the United States, is the assessment of the original public meaning of positive constitutional norms. It appears to be a declination of legal positivism, with the intention of limiting the creative potential of legal reasoning and ridding it of any value-laden jurisprudence. The critics of originalism who base their approach to constitutional interpretation on the natural law tradition, which is nurtured by Roman law and the teachings of medieval Thomism, specifically point to this criticism of originalism. This perspective holds that originalism and natural law are thus incompatible. However, it may be conceivable to establish a normative defense of both originalism and the concept of constitutional order that the latter requires in a different natural law tradition: the so-called neoclassical natural law theory. This paper’s specific purpose is to evaluate the theses put forth in this respect by proponents of the neoclassical theory of natural law – Robert P. George, Jeffrey Pojanowski, Lee Strang, among others – and determine whether or not they provide an adequate normative justification for both originalism and classical liberal theories of the constitution.