Via Jack Butler at NRO, Justice Alito recently spoke at the Catholic University law school, where he gave the inaugural address at school's new Project on Constitutional Originalism and the Catholic Intellectual Tradition (directed by Joel Alicea). From Butler's account:
Alito attempted to provide a précis of some of the lingering questions about originalism, as well as some guideposts for how future thought in this area might proceed fruitfully.
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Constitutional originalism has been a contested notion. Alito defined it as the “theory that the Constitution should be interpreted according to its original public meaning.” But he admitted that this definition leaves many questions about interpretation unanswered. Indeed, he argued that originalism was initially “under-theorized.” But since the founding of constitutional originalism in the 1970s as a reaction to Supreme Court excesses of that time, originalists have attempted to resolve some of these questions.
Now, originalism has so penetrated the study of the Constitution that, Alito argued, “all should be grateful even if they loathe the doctrine,” as, if nothing else, it helped some of its most fervent critics gain employment. Alito even agreed with his Supreme Court colleague Elena Kagan’s contention that “we are all originalists now,” albeit with serious qualifications.
One is that, even if the Constitution and its amendments are the guide for interpretation, “there is a lot of disagreement over how that meaning should be found.” Alito cited the Supreme Court’s decision in Obergefell v. Hodges, joined by Kagan, which legalized same-sex marriage, as one such example. Others have attempted to justify that right on originalist grounds based on the “original public meaning” of the 14th Amendment. But Scalia, Alito, and Thomas, dissenting in Obergefell, disputed the majority’s conclusion that the 14th Amendment’s due-process clause protected a liberty that could have feasibly encompassed same-sex marriage. Their dissent argued that the due-process clause protected only those rights that are “deeply rooted in this Nation’s history and tradition,” which indisputably did not include the right to same-sex marriage. Thus, because of this internal debate among putative originalists about what originalism actually means, “the relationship between each of these subcultures” of originalism with the Catholic intellectual tradition might differ.
And from further on:
In some instances, history can also be a guide; in others, however, its guidance is a bit more uncertain. Indeed, the justice asked us to consider how to think about such questions when “no historical analogue comes to mind” for a given situation. To demonstrate, Alito cited cases in which technology beyond the conception of the Founding was at issue. One case, Brown v. Entertainment Merchants Association, concerned a state ban on the sale of violent video games to minors. Another case, U.S. v. Jones, concerned the use by law enforcement of a GPS tracker on a vehicle whose driver was unaware of the tracking through public streets. Rough historical equivalents, known to the drafters of the First Amendment and the Fourth Amendment (respectively, the constitutional provisions at issue in each case), could be construed, but their applicability was debatable. The question then becomes whether, in such situations, it is appropriate for judges to appeal to “higher-order principles.”
Yet Alito had reservations about one potential appeal in such instances: natural law. He argued that natural law was “not part of the picture” for the founders of constitutional originalism, and that invoking natural law has potential risks, including misuse or misinterpretation. He cited the argument of Justice Hugo Black, dissenting in Griswold v. Connecticut (which struck down a state contraception ban), erroneously describing the majority’s opinion as being rooted in natural law. Alito further noted that many rights have come to be known as natural rights “simply because they have widespread acceptance.” At the same time, there is an additional danger that, even though natural law is “based in reason, not in revelation,” invocations of natural law “would risk stirring up anti-Catholic prejudice” by mere affiliation. Finally, however, Alito argued that those who argue for a greater role of natural law in constitutional interpretation are engaging in a “kind of originalism” to the extent that they argue doing so would be consistent with the Framers’ intent.
My sense is that Alito cast himself as something of an originalist skeptic while Scalia was on the Court (perhaps to avoid his shadow), but has become more originalist since then. It's an important question whether Alito is attracted to some of the conservative anti-originalism associated with "common good constitutionalism."
Posted at 6:04 AM