The Volokh Conspiracy

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Originalism and "Might Makes Right"

The moral case for positive law.


"Slavery was legal; it was also wrong, so wrong as to justify resistance to the law." Many people find this sentence both comprehensible and true. They see law as a product of its society; sometimes that "positive" law has to be resisted, because societies can go quite badly wrong. But to some others, things are more complicated. They see law as a branch of political morality, and though it isn't always perfect (political morality being distinct from morality simpliciter), there are limits to how bad it can be. Either slavery can't have been legal, or it can't have been all that wrong.

Or so one might think from reading an editorial at Ius & Iustitium, claiming that "The End of Originalism" is nigh. On the editorial's account, originalism can't survive a post-Roe world governed by "a patchwork quilt of state laws," where the lives of unborn children hang on arbitrary state lines. Absent some new decision that the Fourteenth Amendment guarantees equal protection to persons still unborn, originalism (the editorial argues) will be exposed as equally arbitrary. Because it holds "that the text alone is law," or else preserves whatever the law was at some prior time, "[o]riginalism is incompatible with any morality beyond 'might makes right.'"

The editorial's first problem is anachronism. However originalism might fare in a post-Roe world, we should recognize that most of its history was in a preRoe world, when states had different laws about abortion (and about slavery, and about which churches to establish or disestablish). Whatever one makes of the Fourteenth Amendment, the original U.S. Constitution, the one without any amendments in it, said nothing about guaranteeing equal protection to "any person"; such protection as there was came from state laws, or perhaps (to the Barron contrarians) from the privileges and immunities of citizens referenced in Article IV. Surely no contradiction can be found in reading that Constitution, as of the day it was enacted, in an originalist way. And just as evils like slavery were expunged from that Constitution only by amendment, those who seek to end abortion might need to pursue that end through new enactments—say, legislation in the several states, or federal legislation in the limited areas of congressional power, or a nationwide constitutional amendment. (What constitutional amendments would the editorial's author support?)

The editorial's second problem is its straitjacketed view of both originalism and positivism. The best versions of originalism (in my humble opinion) hold that the Founders' law is still law today, as lawfully altered. If their law was necessarily limited by the natural law, and if ours is too, then originalism and natural law are perfectly compatible; our law can still be theirs, as lawfully altered, for both the original law and the lawful alterations would be subject to natural-law limits. And the best versions of positivism reject the view "that the text alone is law"; indeed, some positivists (ahem, ahem) treat the common law as law too, though it was never "enacted by the sovereign." To the extent that rules of common law or principles of equity were part of our law at the Founding, they remain part of the law today, unless overridden by contrary state or federal law within the competence of those various governments.

But the editorial's gravest problem is that it misconceives the moral case for positive law. The argument for positivism isn't that might makes right. The argument is that we can best understand not only our actual moral obligations, but also those "semblances of morality" on which human societies insist, by keeping the distinctions between them straight in our minds—by respecting the difference between mores and morals, between the artificial "must" of a legal rule and the real "must" of an ethical one. The simplest explanation why one has a political-morality obligation to pay one's taxes by April 15, or to drive on the right in the United States but on the left in the United Kingdom, is that our legal system pretends that we should, and we happen to have good moral reason to play along.

So positive law does impose certain moral obligations on us—obligations, not always of obedience, but of diligence and honesty. Judges, policemen, bureaucrats, and others routinely tell those whom they imprison, or to whom they merely deny relief, that they are acting according to law. They claim that the law—not the natural law, but the law around here, the law of the United States or of the Commonwealth of Massachusetts—justifies or even requires their actions. Those making such claims have some obligation to see to it that their claims are true. If, contra Justice Kennedy's citationless argument in Obergefell v. Hodges, "[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment" did not actually "entrust[] to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning," then Justice Kennedy should not have said that they did. (Or, at least, he should not have ventured any view without a real effort to investigate the matter. Honest mistakes are one thing, culpable ignorance another.) The morality of positive law is the morality of not telling falsehoods—the morality of "don't piss on my leg and tell me it's rainin'."

American law may or may not include a constitutional ban on abortion, the way Irish and German law used to. The only way to find out is to go look at the Americans, or the Irish, or the Germans, and to see what they're up to. If American law turns out not to include such a ban, then those Americans who desire one may have good reason to lobby for it. In the meantime, they might face a quandary: their moral argument for penalizing abortion even in pro-choice states may war with the principle that nulla poena sine lege, that legal penalties depend on legal prohibitions. But "the thing to do with a moral quandary is not to hide it." The very least we all should do, for reasons both of prudence and of morality, is to tell ourselves and each other the truth.