J. Joel Alicea (Catholic University of America – Columbus School of Law) has posted The Natural Law Moment in Constitutional Theory (48 Harv. J.L. Pub. Pol'y 307 (2025)) (21 pages) on SSRN. Here is the abstract:
Something new is happening in American constitutional theory. Never before have so many legal scholars sought to ground constitutional theory in the natural-law tradition. Indeed, we can truly say that we are living through a natural-law moment in constitutional theory, a period of unprecedented interest in natural law among constitutional theorists. This immediately calls to mind three questions. First: how, if at all, are the theorists of this moment different from prior theorists who sought to ground constitutional theory in natural law? Second: what explains the rise of natural law in American constitutional theory? Third: what are the implications for constitutional theory of our natural-law moment? This essay sketches answers to these questions, with the caveat that much more could be said about them. This essay was originally delivered as the Herbert W. Vaughan Memorial Lecture at Harvard Law School on April 9, 2024.
Stephen E. Sachs (Harvard Law School) has this response: Is and Ought in Constitutional Law: A Response to Joel Alicea (Harvard Journal of Law and Public Policy, Volume 48, No. 1, Pp. 345-359 (2025)) (15 pages). Here is the abstract:
Does originalism need a moral defense? To choose one method of interpretation over another, some argue, is an action: it affects how judges and officials will affect the real world. So interpretive choices might have to be justified the way actions are justified, namely on moral grounds.
These action-focused arguments prove too much. Just as a choice to say the Earth goes around the Sun is usually justified by whether or not it really does, a choice to say that the law provides thus-and-so is usually justified by whether it really so provides, not on the moral benefits of it so providing. Constitutional texts don't just fall in our laps like manna from heaven, to be put to whatever uses might seem best; they often emerge from a process of enactment, with their content already determined in light of an existing legal system. The moral case for originalism, such as it is, rests on its being true: originalism really is the law around here, and judges and officials should say so.
And Professor Alicea has a brief reply: Originalism and Truth-Telling: A Reply to Stephen Sachs (48 Harv. J.L. Pub. Pol'y 361 (2025)) (7 pages).
RELATED: Professor Alicea also recently gave the fourth annual Edwin Meese Originalism Lecture at the Heritage Foundation, titled “Originalism, the Administrative State, and the Clash of Political Theories” (text here, video here). Josh Blackman comments at Volokh Conspiracy here.
Posted at 6:06 AM