Originalism and Its Discontents

Article I of the Constitution (Adobe Stock Image)

In 2021, JWI begins a collaborative partnership with the Liberty Fund’s online journal, Law & Liberty. Led by its Director, Richard Reinsch, Law & Liberty has become one of the premier journals on the Right for writing on jurisprudence, politics, and the culture. With this feature piece, David Forte opens our second symposium with Law and Liberty. Both Law & Liberty and JWI will host entries in the symposia on our respective websites. Responses to Forte from members of the JWI family will follow in the coming weeks.

The King is Dead. Long Live the King.

So do our friends, the authors of “A Better Originalism,” intone their unsympathetic obsequies over the corpse of originalism, struck dead, they declare, by the hand of Justice Neil Gorsuch in Bostock v. Clayton County. One can understand their dismay over the forms that originalism has often taken. Justice Antonin Scalia, for example, often dismissed the moral imperative behind certain constitutional provisions. The authors note appropriately, for example, that in Obergefell v. Hodges, he declared “[The] substance of today’s decree is not of immense personal importance to me.” Such a perspective could, if adopted rigorously, turn respect for the positive law into positivism. Moreover, the fear is that such an ungrounded legalism results in relativism.

The authors declare that Justice Gorsuch’s textualism signals “the failure of originalist jurisprudence,” and they then go a step further by condemning a jurisprudence that “solely relies on proceduralist bromides,” chiding that “[t]oday’s legal eagles exalt procedure over substance.” I do not dwell on those rhetorical overstatements, but turn to the authors’ more fully justified critique that “the only rational way to interpret a legal text is both through its plain meaning and the meaning given to it by the distinct legislative body (or plebiscite) that ratified it.” In fact, that view of textualism was championed by Justice Samuel Alito in his dissent to Bostock.

Whose Originalism?

The authors coronate a new form of originalism, a “better originalism,” an “originalism of moral substance.” If indeed “we are all originalists,” then the inevitable question is, do we espouse the same originalism? If the answer is no, then the further question arises: what is the correct originalism, the real original understanding, and is it worthy of a judge’s loyalty and enforcement? A “better originalism” is better only if it is truer. Whether the true originalism is also “better” in the sense of being more conducive to the common good, is another question.

That brings us inevitably to the “founding source” of the polity and the legal regime, its constitution. A constitution—written or unwritten—is both normative and kinetic, teleological and instrumental, a scheme of duties and correlative rights. A constitution worthy of its name does more than erect a government. It instantiates a people in its historical, moral, and cultural identity. If it does so beneficently, then it is deserving of praise and loyalty (and sacrifice); if ineffectively, then it is deserving of replacement; if ignobly, then it is deserving of rejection. A worthy Constitution is consonant with natural law principles; unworthy if in derogation of them. Nonetheless, constitutions are not fungible expressions of natural law principles. A specific constitution matters, because its particular people matter.

Some now assert, echoing William Lloyd Garrison, that the Constitution, like the nation it represents, is indelibly and perhaps incurably racist. Condemnation, not reverence, is the desert of the founders. The iconography of the founding is to be expunged, not extolled. As the authors of “A Better Originalism” rightly put it, “The animating objective of this new ‘order of things’ is to establish, and to enforce ruthlessly, a scheme of ‘identity politics’ in all branches of American life. The American people are to be broken into a series of tribes, set against each other by color, race, by ‘sexual orientation.’” These activists see a people, or rather, a population, organically incapable of being a nation.

In this contemporary revisionist saga, the “Founding-era luminaries,” praised by the authors of “A Better Originalism” as heroes, become villains whose names and likenesses are to be purged from public view. Some iconoclasts would take a sledgehammer to the Constitution itself, to the Electoral College, the Supreme Court, the remaining powers of the states, and to the equality of the states in the Senate.

The Constitution itself—this written down, positive, founding law of the polity—is at stake.

Let us then look at the elements in the United States Constitution to see if we can derive a correct originalism from it, and to judge whether it is, or is not, worthy.

Aristotle famously espoused a theory of four causes of things:  final cause, efficient cause, formal cause, and material cause. Were Aristotle at the Philadelphia Convention, he would find the final cause of the Constitution—its ultimate purpose—elucidated in its preamble. He would discern the efficient cause—the activity that brought about this particular document—in the events and defining documents of the Revolution and the adoption of the constitution: the Convention’s debates, the ratification process, the contemporaneous commentaries, and the actions of early founders and leaders of the country. He would see the formal cause—the particular shape the Constitution takes—in the elegant, interrelated structure of government. But what of its material cause? What would the substance of the Constitution be?

I aver that the material cause of the Constitution is law.

There are three “laws” that inform the American Constitution: natural law, positive law, and the “law” of prudence. I use the term “law” in both its literal and analogical form, because, of all modern revolutions, none has been so law-centered as the American.

Natural Law

Natural law is not “a brooding omnipresence in the sky,” to borrow a phrase from Holmes. Rather, as the authors of “A Better Originalism” correctly point out, it is a here and now thing. Though natural law philosophy has had numerous “schools” and interpreters over the centuries since the Greeks, we can easily apprehend its scope. The words themselves are the gate to it.

The nature of something is what makes it different from other things. Animals are different from plants. Various animals have natures that separate one from another. A manatee has a different nature from a giraffe. A man shares an animal nature with a lion, but has a nature distinct from a lion in that man is rational. Even inanimate objects can be said to have natures. A chair, for example, is a piece of furniture with a back, usually with four legs, for a person to sit upon. Without a back, it is a stool. For more than one person, it is a bench. Our intuitive sense of nature comes out in colloquial phrases like “the nature of the beast” or “true to its nature.”

Law is a rule of behavior. We are familiar, in science, with natural laws: the phases of the moon or the law of inertia. But when we speak of Natural Law, we look more properly to see what the nature of man is and what rules of behavior—or laws—can be drawn from our understanding of the nature of human beings. Why should one keep a promise? Why should one care for a child? Why should one listen to someone who disagrees with him? And crucially for us lawyers and citizens, what does natural law have to say about positive laws that coercively regulate voluntary human behavior? Why, indeed, should we obey a law if we can get away with breaking it?

In sum, there are certain irreducible, or inalienable, goods for humans from which one can derive moral principles that guide human action and provide the justification for coercive positive law enactments. Natural law theory holds that moral rules, that is, rules of right behavior, derive from man seeking to be true to his nature.

The authors of “A Better Originalism” assert convincingly that natural law can be understood and accepted by most persons, but they merge two forms of natural law norms: the rational and the axiomatic. The rational are the undeniable rules of logic that apply whenever one accepts an objective as legitimate. The classic example is exemplified by Alexander Hamilton, who wrote in Federalist 31, “IN DISQUISITIONS of every kind, there are certain primary truths, or first principles, upon which all subsequent reasonings must depend. These contain an internal evidence which, antecedent to all reflection or combination, commands the assent of the mind.” Applying the principle to the powers of the new government, Hamilton reasoned, “A government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care.” Thus was the doctrine of implied powers enunciated and confirmed in McCulloch v. Maryland by Chief Justice Marshall. Such a rationalist form of natural law has often been termed “right reason.”

Moral axioms, on the other hand, are products of common sense. The example Hadley Arkes often uses is that no person should be held liable for a harm over which he could not possibly have had agency. Any ordinary person of common sense (common sensibility perhaps?) would see that.

Both aspects of natural law, the rational and the axiomatic, are rooted in the notion of what we see as the nature of the human person: rational, possessing free will, interconnected ineluctably with others, purposeful, self-reflective, capable of love. Where, on the other hand, the person is defined by his externals, such as race, economic status, and geography, or by one element to the exclusion of others, such as sex, tribe, age, or religion, then natural law norms will inevitably have little purchase.

That natural law norms are foundational to the American Constitution is undeniable. That slavery was an internal contradiction is true only because natural law norms are foundational. The authors, therefore, are correct to assert that the Constitution cannot be understood apart from its natural law grounding. (I do not here revisit the issue of slavery in the Constitution, except to say originalists who affirm a Constitution grounded in natural law norms must look anew at that moral contradiction).

But though natural law norms may be the ultimate source from which constitutional norms and structures are derived does not mean that every constitutional issue can be reduced to a matter of finding the natural law answer. The positive law of the Constitution has a life and integrity of its own.

Positive Law

Man lives by positive law, whether it be the Peoria traffic code, the decisions of the elders of a tribe, Internal Revenue Service regulations, historic custom, the Rules of Federal Procedure, grandmother’s recipes, or the Constitution. Positive law compels obedience, sometimes through coercion, but mainly through consent.

Positive law itself has a nature. To fulfill its purpose, law also must be true to its nature. And it must be respected as such. If it to be true to its nature, then as St. Thomas Aquinas reasoned, it morally binds us; it compels our consent. Such laws, as St. Thomas puts it, are “legal laws.” Positive Law has an internal moral coherence, as Lon Fuller taught. Else it is simply not law. Positive law has logical coherence too, as H.L.A. Hart and Joseph Raz taught. For a lawyer, or a judge, or a professor, to master the law of contracts, or of domestic relations, or of the Constitution, is an excellence (arête) that the Greeks themselves would have honored.

The Constitution is such a positive law. Perhaps it was the pen of Gouverneur Morris, perhaps it was the reflections of Publius, perhaps it was the First Congress, or the administration of George Washington, or the jurisprudence of John Marshall, perhaps it was the delegates themselves in the hot room in Philadelphia, but the Constitution that came from the founding period was as fine a work of positive law—foundational positive law, no less—that has ever been struck. Its internal structure, its balance of sovereign powers (heretofore never thought to be divisible), its concern and protection of its constituent parts, its clear practicality, and lastly, its durability, makes it a positive law worthy of the name law.

Such a Constitution requires of its practitioners—in all areas of government—their assiduous loyalty and attention. Particularly for those holding power, it compels their obedience. This necessity is attested to by any number of luminaries.

John Marshall: “[I]t is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the Legislature.”

George Washington: “And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech him to pardon our national and other transgressions—to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually—to render our national government a blessing to all the People, by constantly being a government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed.”

Abraham Lincoln: “As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and Laws, let every American pledge his life, his property, and his sacred honor.”

The faults of Roe v. Wade or Obergefell v. Hodges lie, it is true, in their dissonance with natural law norms. But more importantly, and more immediately, the opinions violate the moral norms of the positive law duties of the judge and positive law commands of the Constitution, a law to which the judge owes an immediate and binding loyalty.

By following the text, Justice Scalia believed he was following his moral obligation to be a judge under the Constitution. By seeking out the original historical understanding, Justice Thomas offers praise to the founders. Both affirm the integrity of the Constitution and their own moral integrity as well. It would be beyond their authority under the Constitution to measure every law according to its correspondence to a natural law norm. But where a natural norm has imperative sanction, the positive law cannot be indifferent, as the authors of “A Better Originalism” argue. On the other hand, for most of the countless positive laws and regulations that are extant in the American legal culture, a reference to a natural law norm is unnecessary, and perhaps distracting to the judge or legislator or executive official seeking to do his or her moral duty in articulating and enforcing the law. That too is a moral imperative.

Let us take the natural law norms of gregariousness, friendship, and sociability deriving from the nature of the human person. Do these moral imperatives mean that every law regulating labor, or zoning a neighborhood, or setting a curfew, or even requiring social distancing should be held by the courts as valid or not according whether the judge thinks the law sufficiently furthers sociability? The question answers itself. So long as the legal system is attuned to its grounding in natural law, the solution to legal issues should remain within the bounds set by the system’s particular positive law and the principles underlying the positive law.

But that does not answer the question of what a judge should do, in exceptional cases, when a patent contradiction to an imperative natural law truth or good takes place. If that happens, as the authors of “A Better Originalism” would say, a judge cannot subsume his continuing moral action as a judge to the mere letter of the positive law. He must acknowledge the relevance of the natural law principle to the issue, even if he is without authority to do anything about it, though usually, it is true, the judge does have authority to bear on the matter. That brings us to the issue of prudence.

The Law of Prudence

Prudence has been called the “queen of the virtues.” Aquinas declares that prudence is “right reason in action.” It is the moral use of instrumental logic looking towards a good end, and based on reflection, deliberation, and counsel, in order to find practical means to reach the right result in a particular case. In other words, it is what a good judge should do.

Prudence does not promise, or require, the perfect resolution, but rather what furthers the good in particular circumstances. A triage in medical emergencies is an act of prudence. The nationalists in the constitutional convention gave up the Senate based on population and the right of Congress to veto state laws in order to create a government equal to “the exigencies of the union.” It was arguably an act of prudence when they gave into South Carolina’s demand for an extension of the slave trade in order to save the whole constitutional enterprise itself. Taking into account the compromises made between the large and small states, the interests of the regions, and the acceptance of a Bill of Rights after the Constitution went into effect, one can say the positive law of the Constitution is a commendable act of political prudence.

Prudence is, therefore, not just a personal virtue, but a public virtue. It applies to all governmental actors.

Originalism is a moral command of prudence. By following the Constitution as written, judges maintain the integrity of the polity, keep it consistent and intact over time, and continue to affirm the existence of a people that coheres in time and space. To upset that because of sincerely held beliefs of right political action, as arguably many judicial decisions have done, would be a grave scandal.

But prudence is based on justice in a particular case aimed toward a pre-existing good end. The action itself must be moral. The examples brought forward by the authors of “A Better Originalism,” are apt. Dissenters, in particular, are freer to speak the truth, and their failure to do so in their role as a judge justly deserves criticism. The dissenters in Roe v. Wade had ample opportunity to demonstrate the reasonableness of the State of Texas’s efforts to protect fetuses from intentional destruction. In Obergefell, Justice Alito comes close to talking about the objective normativity of heterosexual marriage but does not do so fully. Justice Butler dissented without opinion in Buck v. Bell, perhaps because he was the only Catholic and his opinion would have been taken by Protestants on and off the Court as another example of the Pope attempting to subvert American democracy. Perhaps his silence was prudential. Justice Thomas has never ceased speaking of the devastating moral impact the Court’s affirmative action cases have had on minorities. But failures to speak foundational truths in cases of grave import do not diminish the attempts of originalist judges to do their duty to the Constitution, which is the very source of their authority and office.

Correct Originalism

Should Justice Neil Gorsuch cause us to cancel originalism? I think not. The Constitution is a created thing. Seen as a whole, it is a coherent structure that looked to persist over time, to effectuate the well-being and liberties of the people, and to deserve the reverence accorded to it. It was formed in a covenantal spirit, ordained for ourselves and our posterity. When we look upon a work of art, Michelangelo’s Pieta, for example, we see the whole. Our eyes are drawn here and there. We don’t admire it for its marble or the principles of aesthetics. We admire it as it had come to be created. So do originalists admire the Constitution. They see it as a whole, existent, moral, and legal presence.

It is not, of course, an icon to be worshipped. An originalist who cannot see its moral sources or even its extant flaws turns the Constitution into an idol. But to appreciate positive law is not necessarily to be a positivist. A correct originalist respects the Constitution for itself, including, where necessary, its grounding. In that, the authors of “A Better Originalism,” I trust, would not disagree.

David Forte is a Senior Scholar at the James Wilson Institute and the Charles R. Emrick, Jr.- Calfee Halter & Griswold Professor of Law at Cleveland State University.

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