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 pre-Roe 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.

Comments

[mydisplayname]

"[W]e happen to have good moral reason to play along" and "[t]he very least we all should do, for reasons both of prudence and of morality, is to tell ourselves and each other the truth"?

Is there a lobby for that sentiment? 🙂

[bacchys]

Originalism often gets confused with originalists who aren't always faithful to their stated principles. Witness Scalia in Gonzalez v. Raich.

[Brett Bellmore]

Scalia didn't even claim to be a faithful originalist. Though, frankly, he was even less faithful an originalist than he did claim to be.

[Jjh_Esq]

Scalia was a textualist, not an “originalist.”

[bernard11]

Scalia was an ideologue. End of discussion.

[Brett Bellmore]

Originalism isn't a moral doctrine, essentially it's a linguistic doctrine. It has nothing to say about whether the law is good, or whether you have a moral obligation to obey it. It simply says, "This is what the law means, love it or hate it, makes no difference."

[Krychek_2]

Brett, is there an outer limit to it? Suppose originalism prevented the president from defending against a nuclear attack, or required mandatory abortions, or prevented averting some catastrophic disaster of biblical proportions. Is there a point at which originalism becomes too expensive and even you ditch it? Or would you look at the rubble and be proud that your principles were adhered to?

[Brett Bellmore]

No, there is no outer limit to it. You really didn't get my point, you're still treating originalism as something beyond a linguistic doctrine.

Look, suppose you need to violate the Constitution in order to save the country from imminent destruction. I'm having a bit of trouble envisioning a scenario for this, but suppose it's the case.

Then violate the damned Constitution, and at least have the decency to admit that's what you're doing. Don't compound the violation by pretending you're obeying it!

Don't institutionalize lying about the meaning of the Constitution, just to make the occasional violations YOU think are critically important, (But which other people might actually think are seriously bad ideas!) easier to pull off.

Here's an analogy: Suppose you're a cop, you've just arrested a terrorist, who's plausibly bragging about having a nuclear bomb concealed somewhere in the city. It's going to go off in the next 24 hours.

Maybe you're going rogue, and going to torture the location out of him. Maybe you think you're justified in doing so.

Does that mean when you're put up on trial afterwards, a judge would be justified in ruling that torture is permitted under the 8th amendment?

All you're doing is taking off the pressure to make needed amendments, and excusing violations you could never get amendments for, because not enough people agree they're needed.

[Brett Bellmore]

To be clear, I think judges are never in the "Just violate the damned Constitution, then!" position, because they're not doing anything existentially important, they're just ruling on what the law is. If existential concerns are involved, it's somebody in the executive branch, almost certainly, because they're the people doing stuff. And a pardon can be issued, an the heat taken, and you can contemplate changing a law that would have led to disaster if followed, without the need of a judge lying about what the law means.

[Sarcastr0]

Except in the Founding era the idea that common law jurisprudence applied to constitutions was normal and expected. So looking to precedent rather than back each time to the constitution like you insist is actually originalist.
It also has the benefit of being directive and tractable, unlike searching for nuggets of support in this drafter or that and declaring your opinion is now aligned with The Intent of the Founders. Not even originalist academics buy that eyewash nowadays.

[Dilan Esper]

Yep. And, in fact, they even wrote the common law system into the Constitution. It's there in Article III. It's there in the Seventh Amendment.

[Bob from Ohio]

No where does the Constitution apply "common law" to Constitutional interpretation.

A money damage suit at "common law" does not apply to the Constitution no matter how many times you repeat your comment.

[Dilan Esper]

The Constitution says that the entire legal system is based on the common law system. That's literally what all cases in Law and Equity is referring to.

You dislike the common law and wish the framers didn't write it into the Constitution, so you lie and minimize what the Constitution says. But it says it, and any serious "originalist" framework MUST include common law adjudication. Your rejection in it is flat disobedience of the Constitution. It's making up the law you want because you don't like the law as written.

[Bob from Ohio]

"lie" "disobedience "?

A difference in interpretation is not a lie nor disobedience [whatever "obedience" mean to a mere citizen.

Where does the Constitution say "common law rules shall apply to interpretation of the Constitution"? You are stretching a few words completely out of shape.

Judge made law is fine for regular law, it is not suited for a written constitution. England did not have a written constitution.

[Sarcastr0]

Where does the Constitution say "common law rules shall apply to interpretation of the Constitution"?

Where does it say it must be read using originalism? Where does it say a written constitution is different?

You ask curated questions, you get curated answers.

[Bob from Ohio]

"Founding era the idea that common law jurisprudence applied to constitutions was normal and expected"

Not true.

[Sarcastr0]

Trenchant argument, Bob. I don't wanna doesn't usually play well above 3 years old.

Take that up with Will Baude. And Sachs. And Blackstone. And the anti-federalists who lost the argument that, among other things the judicial power was 'dangerously imprecise.'

[Krychek_2]

The more usual scenario is to have a policy that worked great 200 years ago but has outlived its usefulness. However there aren’t the votes to get an amendment through. And there is at least a semi plausible interpretation of the Constitution that, while not what the framers had in mind, allows a better outcome.

Why should we be stuck with bad policies just because the framers didn’t foresee conditions in 2021?

[Brett Bellmore]

"Why should we be stuck with bad policies just because the framers didn’t foresee conditions in 2021?"

Because the only reason you're stuck with them is because you can't convince enough people they ARE bad policies. And that's actually a pretty good reason for retaining a policy unchanged.

That's a problem here: You're treating the policies being bad as some kind of objective fact, rather than a political opinion. We have a system that's designed to keep constitutional policies static in the absence of a consensus that they need changing, and your response to your inability to generate that consensus is breaking the system, not trying harder to persuade, or maybe even questioning your own conviction that they're bad.

[Sarcastr0]

Populism is a crap way to explicate rights. That's why we have a bill of rights - they protect unpopular things.

Also, too - the idea that the 9th protects only rights the Founders thought of and didn't write down is not a natural reading of that text.

You think that gives the judiciary too much discretion. But no more so than they already have when interpreting ambiguous statutes, or patents, or what-have-you. Heck - there already is a doctrine about how to identify new fundamental rights!

Again, if you think the judiciary will use something to become tyrants and rule our lives, then why haven't they already? Why didn't they 100 years ago before originalism was even a thing? Because that's actually not who they are. Because professionalism and principle remain things people have, even if Brett doesn't believe it.

[Brett Bellmore]

"Again, if you think the judiciary will use something to become tyrants and rule our lives, then why haven't they already? Why didn't they 100 years ago before originalism was even a thing? "

That's a fair question. I attribute it to the 17th amendment depriving the states of their last even theoretical leverage over the composition of the federal bench.

You don't get explicit originalism until you have living constitutionalism, because you don't need to say, "Don't pull meanings out of your ass!" until judges start doing it, and arguing that it's legitimate to do it.

And living constitutionalism didn't get it's start until FDR's push to aggrandize the federal government relative to the states, which critically relied on the 17th amendment depriving the states of their last mechanism for countering the appointment of judges hostile to state interests.

So, ratification of the 17th amendment was the crucial enabling step for living constitutionalism to be adopted in the federal judiciary.

Once you had judges being selected to over-ride the constitutional balance between states and the federal government, they were also useful for imposing policies it was politically imprudent for legislators to directly vote for, like legalizing abortion or SSM. They became a mechanism for concealing responsibility for unpopular policy changes; "The courts forced us to! (because we picked judges who would force us to..."

But the primary motivation for living constitutionalism was disabling the Constitution's limits on federal power, and that required the states being deprived of their power to reclaim the appointment of Senators.

[Sarcastr0]

Courts were not originalist 100 years ago. Holms and the like absolutely looked to precedent and modern norms, in addition to Constitutional text. They didn't bother with ambiguity analysis either.

*Originalism* was what concealed responsibility. 'I don't want to support this unpopular break with Warren Court precedent, but the Constitution made me do it!' wasn't a thing until the 1980s.

[Krychek_2]

And the only reason I can’t convince enough people is that the requisite number of people was set ridiculously high. It’s one thing to protect minorities; it’s another thing entirely to enshrine permanent gridlock in the Constitution.

[Cal Cetín]

Which specific reforms are we discussing, as to which you can't get a consensus under Article V?

[Stephen Lathrop]

Cal, any reforms at all that tend to shift relative state power in the federal government toward one-person-one-vote. Reform of the electoral college, for instance. Also, any reform of the provision that the houses of congress make their own rules, which no one else can review.

[Cal Cetín]

"any reforms at all"

There must be *some* one-person-one-vote reforms you consider beyond the pale?

[Krychek_2]

Cal, the issue is not whether I might consider a particular reform beyond the pale. The question is how huge a supermajority should be necessary to amend the Constitution.

As it stands now, 13 states can block an amendment, with Wyoming canceling California. The bottom 13 percent of states by population is something like 20 percent of the US population as a whole. That means legislators representing 20 percent of the population can block something 80 percent of the country wants. So my question to you is just how much power does the political minority think it’s entitled to?

[Cal Cetín]

Wrong question.

Who cares what *I* think? I certainly don't.

I didn't write Article V.

The question is whether you get to do an end run around the Constitution by ignoring Article V.

The question is not whether Art. V gets the majority/minority rights balance exactly right, but whether disregarding constitutional protections set up to protect these rights is legitimate. What other protections does the minority have, if you get to ignore the actually-existing protections? Can they trust you to come up with your own protections, and expect your successors to honor those protections, once Article V's barriers have been breached?

What's on the chopping block first? The Fourth Amendment? That one seems vulnerable to a majoritarian attack. Maybe after well-publicized, controversial acquittals we can get a majority against trial by jury.

[Krychek_2]

Cal, conditions have changed radically since Article V and it’s a perfect example of a constitutional doctrine that has far outlived its usefulness. In 1789 there were a lot fewer states and their interests were far more aligned and there was a far greater consensus as to what the limits on federal power should be. Putting the shoe on the other foot, I very much doubt that large swaths of the Constitution would make it through the Article V amendment process if they were being proposed for the first time today on a clean slate. The Second Amendment certainly wouldn’t. So why are we stuck with 250 year old policy simply by inertia?

I will agree that amending the Constitution should require more than a simple majority but the current requirement of 2/3 of Congress followed by 3/4 of the states is just absurd. It ensures that stuff that hasn’t worked well in generations can’t be fixed. But, since that’s the system we have, yes, end runs around it will continue to be the order of the day. Because they’re the only way to keep our politics from being even more dysfunctional than it already is.

[Stephen Lathrop]

What other protections does the minority have, if you get to ignore the actually-existing protections?

Assuming you mean by, "actually existing protections," those which are explicit in the Constitution, you could strip away the filibuster without changing any actually-existing protections. Same with state gerrymandering. If you could get rid of the electoral college, small states would still enjoy the huge advantage they get from preferential extra power in the Senate. Plenty more where those came from. It isn't obvious that the privilege of the houses of congress to make their own rules was meant as minority protection, but it sure has turned out that way—in addition to the filibuster example above, you get outrageous gamesmanship to empower a minority of a minority on both Supreme Court nominations and filibuster trials.

Cal, is it possible you heard about minority protections in the Constitution, and concluded that meant majorities were not usually supposed to win?

[Cal Cetín]

Let's start with Stephen - first, anything is "possible."

It's possible that you're trying to discuss something other than what Krychick and I were discussing. As for myself, I'm going to confine myself to that topic, which if you recall, was the Amendment V process.

Krychuck doesn't want to follow the Article V process. I explained my view about why we should follow it. It protects the minority. Abolish Article V, and the minority has no assurances whatsoever, because if the expressly spelled-out amendment process can be sidestepped, any alternate protections can be sidestepped too.

I know you want to conduct an argument with the Republican leadership in Congress, but those guys don't even return my calls, how can you expect me to speak for them?

[Cal Cetín]

As for Krychuck, which specific ways have we protected the political system from dysfunction by disregarding Article V?

The expansion of the spending power?

Using the commerce clause to lock up hippies for possessing joints?

Cutting down on trial by jury by threatening harsher sentences to those who demand a jury?

These are all examples of bypassing Art. V, and I don't see how they made the government more functional.

[Krychek_2]

Cal, you can always find specific bad results no matter how you interpret the Constitution; I agree with you that nobody should be locked up for Mary Jane. But overall the spending power and a broad interpretation of the Commerce Clause have allowed for a federal government far more in line with what most Americans want from the federal government whether or not it’s what the framers envisioned.

As for protecting minority rights, Stephens point is unanswerable: most of the time the majority should win. So we go back to my earlier question of just what rights do you think the minority is entitled to? As it stands now, the minority has pretty much an absolute veto. It’s the minority that usually gets what it wants, and that should not be the case.

Show me a reasonable line at which you think minority rights have been adequately protected, then we’ll talk. Otherwise you’re asking for a blank check.

[Cal Cetín]

"most of the time the majority should win"

Lol

Seriously, though, which needful reforms would be blocked by the Article V process - assuming people decided it was necessary (as opposed to simply getting a Congressional majority plus a Supreme Court majority)?

Would Wyoming block an amendment providing for aid to the disabled and the poor?

Would Rhode Island block an amendment to ban cocaine, meth, and other non-MJ drugs (talk about a popular cause)?

We got 3/4 of the states to approve the income tax. Of course, it helped that they thought they were approving a tax on rich people, but never mind that detail.

They got 3/4 to provide equal suffrage for women. Before you answer that this was too long, bear in mind what a major social reform this was.

Generally, when constitutional amendments fail, it's because they don't even reach the floor of Congress or, in a few cases, don't make the 2/3 threshold. Many of these amendments would have rushed through the states like wildfire (a flag-burning amendment, for example, no pun intended).

And if you don't trust state legislatures, you have an easy workaround, the one used with the 21st amendment - have the people in each state vote up or down, and conventions (like Presidential electors) would rubber-stamp the decision of the voters.

Maybe there'd be enough states to block a corporate-speech amendment (specifically, an amendment awarding media companies more speech rights than regular companies - because media companies don't have enough power already and they need more monopoly privileges).

Or a minority of states might block a repeal of the 2nd Amendment. Or the 1st. They cling to their guns and religion in some states.

But really, for one group of states to be arrayed against the other, and for the less-populous to block the wishes of the more-populous, there'd have to be some wedge issue like guns where the rural states are more wary than urban states.

But an aid-to-the-poor amendment or a health-care amendment might pass once it passes Congress (which is the main problem even with bills which need a mere majority).

Not only that, but the existing amendment procedure would have state approving all sorts of stuff you don't like by overwhelming (at least 3/4) margins. Locking up flag-burners, executing fentanyl and crack dealers, crime-victims-rights amendments, all sorts of stuff like this would be eagerly gobbled up by the states but Congress simply hasn't submitted such things to them.

[Sarcastr0]

That can't be enough, Brett. Because there is a lot of ambiguity in the Constitution, enough that it's gotta be intentional.
The Founders didn't leave 'the executive power' at that so that later generations could do deep dives into history to speculate some directive meaning there. Same with a definition of speech that carves out defamation and fighting words and the like.

It is an unsupported assumption that you need (or are able to) read the Constitution like a statute or a contract.

This particular argument doesn't mean originalism is wrong, it just means your argument it's right doesn't hold water.

[Brett Bellmore]

Yes, there's ambiguity in the Constitution, but not nearly as much as living constitutionalists like to claim.

Who's going to find more 'ambiguity'? Somebody for whom ambiguity means, "Damn, I can't figure out what this really means!", or somebody for whom ambiguity means, "Hot damn, I get to say it means what I want it to mean!"?

When do you ever, I mean ever, see living constitutionalists saying, "Darn it, societal evolution went in a direction I didn't like, the correct living interpretation of this clause is something I like less than mindless textualism! Guess I'm stuck."

The living constitution always evolves in directions living constitutionalists like. It's motivated reasoning, and motivated perception of ambiguity.

[Sarcastr0]

This seems like arbitrary line drawing to me.

Especially because it's not like originalists don't have the exact same incentives issue. Declaring what you're doing to be unambiguous changes nothing. Look into U.S. Term Limits, Inc. v. Thornton for an example of conservatives finding ambiguity where the text really does not.

Also check out Kagan's dissent joining Alito in Ramos sometime. Of course I guess you'll assume she's in bad faith there.

In the end, you either trust the judicial institution or you do not. You don't get to just trust your side. Well, you do, but then no one need take you seriously.

[Bored Lawyer]

"Originalism isn't a moral doctrine, essentially it's a linguistic doctrine."

I don't agree. In my mind, the basis of originalism is popular sovereignty. As in "We The People" who adopted the Constitution. Which means that when the people enacted a grant of or restriciton on government power, then a court should interpret those provisions as faithfully as they can to the original understanding.
The "People" of course retain the right to change things by Constitutional amendment, if they think something is unfair, or not working well, or if they perceive the importance to enact new rights or new grants of power. That is not for judges to do.

[Brett Bellmore]

"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'.""

Should we not, then, dispense with 'legal fictions'?

[ReaderY]

There’s no need for falsehoods. This argument is so easy to address, it isn’t serious. Simply let the Supreme Court correct the constitution where it’s wrong.

You don’t even have to let put the old versions down a memory hole. You just say that the Supreme Court is the supreme arbiter of what the law is, including the constitution, so if there ia a portion of the written constitutional text inconsistent with the Constitution as the Supreme Court knows it to be, it gets struck down just like a statute would get struck down.

No fuss, no muss.

[Stephen Lathrop]

ReaderY, was that intended as sarcasm? If not, please note that you just installed the Supreme Court as the U.S. sovereign, and discarded, "We the People."

[ReaderY]

As Professor Volokh and other Conspirators recently noted, people ought to frel comfortable pointing out that someone’s argument is a bad one without everybody concluding they are shill’s for the opposite position.

I am feeling comfortable. I am perfectly willing to counter the argument that for the Supreme Court to make itself the supreme arbiter of everything it would have to lie by pointing out that it could perfectly well make itself the supreme arbiter of everything openly, without lying.

And that in no way means I think it should make itself the supreme arbiter of everything. I point out below part of why I think it shouldn’t. It just means that this particular argument against is not a well-constructed one.

[Sarcastr0]

Legal fictions are just judicially noticed heuristics. They are not lies to fool the American People.

https://en.wikipedia.org/wiki/Legal_fiction

[Brett Bellmore]

They CAN be heuristics. They aren't always.

Take for example, the fiction behind civil forfeiture is that you're suing the property, not the owner. It dates back to dealing with seized contraband without owners who could be identified and sued.

How is it a heuristic to apply it to property where you damned well know who the owner is? It's not a heuristic, it's a way of circumventing the owner's constitutional rights!

[Sarcastr0]

Oh sure, you won't find me defending civil forfeiture.

I was too sweeping in my objection that you were being too sweeping is all. the point is that not all legal fictions are dumb and bad.

That one is, though!

[Longtobefree]

"a patchwork quilt of state laws,"

This is the original scheme of the United States of America.
It allows individuals to choose.

[Sarcastr0]

Naw, that was the Articles of Confederation.

[ReaderY]

I would characterize this differently. This isn’t about “originalism.” this is about democracy. People have historically disagreed greatly on moral matters. That means that any democracy has to risk the wrong people will have the majority. And as Professor Sachs point out, majorities have regularly supported things subsequent generations think horrible. A federal system with local choice greatly increases the chances that somewhere, a majority is supporting something really wrong, just as flipping 50 coins instead of 1 makes it much more likely to get at least one heads.

If we had exact knowledge of what is right and wrong, federal democracy would be a terrible system of government. Only a centralized dictatorship can guarantee correct and moral policy. Parties that are certain about the truth and have total confidence that they know what is right are absolutely correct, or at least being completely consistent, by being totalitarian. When you know the right thing is to break some eggs in order to make the omelette, people who are squeamish about it simply get in the way.

So if you are certain you know what is right, there is a great deal to be said for a sham democracy where you let people go through the motions of elections etc. but the right people ensure that only the correct outcomes actually get implemented.

There can only be a case for federal democracy when we don’t think we have absolute certainty over what is right, or that breaking the eggs will really be justified by the omelette. Only a non-prophet organization, non-claravoyants unable to see the future and not tuned in to the essence of truth, could benefit from such a system.

When we don’t know what’s right, having multiple possible outcomes lets us see their consequences - whether breaking eggs actually results in an omelette, for example - and learn from them, very slowly and over time. When a once-novel outcome can be shown to be better, then it can be adopted nationwide.

So slavery absolutely was legal, as legal as abortion is today, in the states where it was adopted. Democracy permits really terrible outcomes. Only outcomes perceived as bad by a supermajority get taken off the table.
M

[ReaderY]

There’s no more reason to defer to framers than there is to defer to a legislature. If you regard a constitutional convention or amendment with state ratification as a super-legislative act, then originalism is really just the same thing as saying that legislatures have to be followed on ordinary laws when judges disagree with them. If republican federalism is legitimate, so is originalism.

So the critique of originalism by people who oppose abortion is essentially the same critique as the critique of abortion laws by people who think abortion should be legal. Both say if it’s wrong, it can’t be the law. Both say that if it’s right, is has to be part of the Constitution.

The fact that they take opposite sides on the specific issue of abortikn, and use different jargon to describe their arguments (e.g. “natural law” vs. “human rights”) doesn’t really change the fact that they are making the same argument. Since their side is right, it must be the law of the land and there can’t be a law inconsistent with it.

[Dr-P]

reminds me of the old adage

the Supreme Court is the ultimate arbiter of the Constitution
- not because they are right
- but because they get the last word

Similarly, they decide on consitutionality, not morality
- they fail when they confuse the two
- here originality provides a good basis to differentiate

The founders were the most learned of the day
- they tried to set up a limited government
- dedicated to the principles of the Declaration of Independence
- there were compromises, but set up a method to amend the constitution

[Sidney r finkel]

This post, and a large number of the comments contain a fundamental mistake or misunderstanding of the Constitution. That misunderstanding is that the Constitution is all law.

Part of the Constitution is law/statute. The qualifications for the Presidency for example are law, and are specific statute. It is the law of the land that one has to be 35 years old to be President.

But a large part of the Constitution is not law/statute as we commonly use the term. Instead it is the principles of the law. The ban on cruel and unusual punishment is not a law or a statute. It is the statement of a principle to which laws that do set forth punishment must adhere. And because the standards of cruel and unusual are not specific, it is left to the legislatures and the courts to determine what they mean.

So Originalism is basically a fraud. It does not exist because the Constitution is not a set of statutes. Originalism is used to justify certain political positions, and that is wrong, divisive and dangerous to the rule of law. That should stop.

[JimM47]

A very tangential point:

And the best versions of positivism reject the view "that the text alone is law"; indeed, some positivists (ahem, ahem [link to the author's law review article defending the proposition that law can be found rather than made]) treat the common law as law too, though it was never "enacted by the sovereign."

I agree that this is the best version "positivism." But in a more rational world, I would call it "best" because it isn't "positivism."

I blame Hart for the strange historically contingent outcome that positivism gets defined by the view that 'morality is not an intrinsic part of law.' The real historical impact of positivism in America isn't that. The real impact was based on (1) Austin's claim that law was the 'enacted by the sovereign' and (2) Holmes's corollary that, therefore, judges must be enacting law, rather than finding it, when they exposit the common law. Positivism as an intellectual movement brought us what Sachs calls the 'mistaken premises' behind the Erie doctrine. I wish we had terminology that reflected that.

[Bob from Ohio]

Originalism may not protect the unborn but textualism can.

14A gives rights to "persons" and gives Congress the power to enforce that right. Congress has passed civil rights acts under this power which include a definition of persons. So, Congress has the power to define "person".

Title VII of the 1964 act includes:

(a) The term "person" includes one or more individuals, governments, governmental agencies, political subdivisions, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-­stock companies, trusts, unincorporated organizations, trustees, trustees in cases under Title 11 [originally, bankruptcy ], or receivers.

Include "individual humans, born or unborn" as a definition of "person" in the Unborn Person Civil Rights Act of 20___, a Constitutionally valid protection to unborn humans can be created.

[Noscitur a sociis]

What would the rest of the act consist of, in your view?

[Bob from Ohio]

IDK the exact language but I would suggest it should ban this:

The Associated Press@AP
BREAKING: California unveils plan to become an abortion "sanctuary" if the Supreme Court overturns Roe v. Wade. The proposal would include paying for travel, lodging and procedures for people from other states who want to have an abortion.

[Alan Vanneman]

Two problems, of many, with this post:

1. The "Founders" themselves didn't follow the Constitution when it got in the way of their political goals. The Aliens and Sedition Act, signed by John Adams, is widely regarded as the most unconstitutional law in history. Alexander Hamilton worried about the political advisability of passing the act, but once it was law encouraged its aggressive use against Jeffersonian types.

2. Modern day originalists/textualists are happy to disregard the "Founders" when they say the wrong thing. In a recent case, Justice Thomas "explained" that "the Court blundered" when he dismissed the significance of the Court's decision in its first important case, Georgia v. Chisholm, because he didn't like the result, a decision made entirely by Founders, including Chief Justice and Federalist Papers author John Jay. How could they get it wrong? How was that even possible? Huh?

[JJJSSS]

True originalists would at the least have considered the possibility that the ACA's mandate was constitutional not because of the weird tax/non-tax thing that Roberts came up with but because Hylton v US might well have said that it was an indirect tax, and obviously Pollack v Farmers' Loan & Trust Co was wrong, because Hylton was decided by the founders.

[bernard11]

Nothing weird about it.

[Cal Cetín]

The linked article (which the post tries to refute) is worth a read. Here's a sample:

"As a preliminary note, the classical tradition does not hold that law is simply equity, that is, that judges should always simply do what seems best to them unconstrained by the text of the law. To the contrary, it gives due reverence to the text of the law and holds that law will constrain judicial actors and prevent them from applying their own all-things-considered preferences. St Thomas, in answering the objection to why laws are necessary when decisions could just be entrusted to judges, cites Aristotle in reply, concluding that “since then the animated justice of the judge is not found in every man, and since it can be deflected, therefore it was necessary, whenever possible, for the law to determine how to judge, and for very few matters to be left to the decision of men” (ST I-II q.95 a.1 ad 2). Therefore, it is only when a positive law conflicts with the natural law itself, and not with mere judicial preference, that the positive law be trumped. This is not the judicial restraint of those who would leave all morality to the voting booths, but this is a large topic for another occasion. "

[Frank Drackman]

The aborted don't vote*, either a good/bad thing, as they are disproportionately Black/Brown/Po'.

*except in certain localities.

[Jaypd]

So what you're telling me is that a new blog appeared last year pushing Vermeule's vision of the constitution but it is run anonymously.

This sounds an awful lot like Vermeule. Is this one of those things where someone creates a puppet to act like there's support for their ideas where there is none?

[bernard11]

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.

I don't quite get this. The reason we drive on the right (and on the left in the UK) is that just having a rule about it is a really good idea, and it doesn't matter which rule you choose. So somewhere along the way our rule was set at "on the right, please."

Similarly, we pay our taxes by April 15th because you need a deadline, and it's fairly arbitrary what you choose, as long as you allow enough time after the end of the year to get things organized.

[Sarcastr0]

This is the methods of dictatorship. Ends justify the means. And the ends are determined by m_k.

[Sarcastr0]

It's simple because you just wrote some circular logic.

'System says thing is bad. If system doesn't say thing is bad, then system should be ignored because thing is bad.'

That's not simple, it's stupid.

[Cal Cetín]

I don't know who writes the admin posts, but there are posts under the contributors' names, like this one from Vermeule:

https://iusetiustitium.com/gnostic-constitutional-theory/

[Sarcastr0]

The conservative legal movement has been claiming that originalism defines which food is good.

If not originalism, where are you getting your taste from? And why didn't you tell anyone it wasn't originalism.

Changing horses in mid stream is a bad look when y'all have been insisting your horse is the only real horse in the world and everyone claiming other horses exist are lying tyrants.