At Law & Liberty, Zachary Chambers: The Modernist Case for Originalism. From the introduction:
Originalism’s position seems unassailable, with both a majority of Supreme Court justices pledging fidelity to some variant of the theory, and tremendous institutional backing within the conservative legal world through institutions like the Federalist Society
Despite this dominance, a number of conservative intellectuals and academics have for years expressed deep skepticism of originalism. A 2021 article coauthored in part by Professor Hadley Arkes labels originalism a positivist theory that “ignores both our broader Anglo-American tradition and the influence of natural law on our nation’s founding,” forcing judges to act as “technocrats focused entirely on the text, with no attention to the underlying principles that give meaning to that text.”
This is not a new critique. Professor J. Joel Alicea, in a Notre Dame Law Review article, chronicles the long list of criticisms that originalism has faced from the natural law tradition. This criticism goes back to the very beginning with originalism’s emergence in the 1970’s. Most recently and notoriously, Harvard Law professor Adrian Vermeule has made his name through traditionalist criticism of originalism. Vermeule has termed his hermeneutic “common good constitutionalism.” Alicea, in large part, attempts to comprehensively respond to many of these criticisms and ground originalism in the natural law itself, showing that the latter in fact necessitates that judges apply the former in our Constitutional order.
While Professor Alicea’s argument is well-taken, I think a broader point has been overlooked in these debates. It is hard to disagree with the crux of the natural lawyers’ criticism. Originalism is indeed positivist and detached from ethical considerations. In reality, however, that is the theory’s greatest strength and a key reason for its success. Abandoning this theory just as it has found its most solid footing would leave the public with no widely-accepted alternative to living constitutionalism.
Agreed. The alternatives to originalism (other than judicial passivity, which is not realistic) are living constitutionalism of the left and living constitutionalism of the right, by whatever names they are known. Also great accompanying picture of Justice and Mrs. Scalia.
Posted at 6:17 AM