The Volokh Conspiracy
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Is and Ought in Constitutional Law
A response to Joel Alicea on whether originalism needs a moral defense.
Does originalism need a moral defense? In his newly published Vaughan Lecture, Joel Alicea argues that it does:
Justifying a constitutional methodology requires arguing that judges ought to employ that methodology, which requires making a moral argument that the methodology is better than its competitors. And we can only know the comparative moral soundness of competing methodologies by reference to some standard of moral evaluation. . . .
Thus, if originalists wanted judges to accept their view and reject competitor theories, they had to provide a moral argument based on contested moral truth claims. That does not mean that originalist judges necessarily have to make case-by-case moral judgments when adjudicating cases, but it does mean that they necessarily have to make moral judgments in choosing originalism over its competitor methodologies.
The Harvard Journal of Law and Public Policy was kind enough to publish my response, entitled "Is and Ought in Constitutional Law."
Addressing as well similar arguments by Francisco Urbina and Cass Sunstein, my paper puts forward a simple proposition. If, on your theory of law, originalism correctly describes what the law is, then judges and officials ought to say so, for the same reasons we all have to tell the truth.
From 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.
(further discussion after the jump)
The reason why arguments like Alicea's have bite is that knowing what the law is doesn't always prove we ought to follow it. Even natural lawyers, who see law and morals as interrelated, should still agree that legal requirements and moral requirements can potentially come apart. (Sometimes we really ought to jaywalk, even when jaywalking really would be against the law.) So a judge can't just rest on arguments about what the law is; the judge's choice of interpretive methodology is an action, and the judge has to justify it the same way actions are justified, namely on moral grounds.
But all these arguments about actions prove too much. Saying that the Earth goes around the Sun is an action too! But in most contexts it's justified by the fact that Earth really does go around the Sun. The specifically moral parts of this reasoning are the totally uninteresting ones, just the ordinary moral reasons to say true things rather than false ones. Once you have the facts down, the reasons become pretty trivial (or, if you want to be more precise, the reasons-to-act are downstream of the reasons-to-believe).
So too with law. The best reason to say "the law provides X" is usually that the law really so provides. So whatever your theory of what the law is, if it turns out on that theory to be originalist, you ought to represent it that way. That's as much of a moral defense as originalism needs. With a coauthor, I've suggested that American law is originalist on positive grounds, given the higher-order rules that ground our legal system, through the account of the law's structure and sources that the American legal community publicly accepts and defends. And other people have argued for originalism on natural-law grounds, as in Jeff Pojanowski and Kevin Walsh's "Enduring Originalism" and Alicea's own "The Moral Authority of Original Meaning." But whatever approach is right, whether originalism is or isn't the law, we ought to represent things accurately.
Understanding things this way undermines many claims about "interpretive choice" on moral grounds. At least for legal purposes, those choices might be a matter for legal rules, and the law might not leave the interpretive choices open. Constitutional texts don't just fall in our laps like manna from heaven, to be put to whatever use seems best; often their content is already determined by the existing legal system within which they arise. To paraphrase a famous argument from Robert Nozick:
If legal instruments "fell from heaven like manna"—simply as marks on paper, unconnected to any particular interpretive approach—then it might be plausible to choose among ways of interpreting them on ordinary normative grounds. But is this the appropriate model for deciding how legal instruments are to be read? To the extent that these instruments come into being in the context of some existing legal system—not just as arbitrary marks on paper, but as well-formed legal objects, statutes and contracts and constitutions and so on—there's no need to search for some optimal interpretive theory to apply to them. "The situation is not an appropriate one for wondering, 'After all, what is to become of these things; what are we to do with them.'" In the non-manna-from-heaven world in which legal instruments are made or produced or transformed by preexisting legal institutions, with an eye to preexisting legal rules, there's no separate process of interpretive choice for a theory of interpretive choice to be a theory of.
In sum: the moral case for originalism, such as it is, rests on its being true. If originalism really is the law around here—on whatever the right theory of law might be—judges and officials should say so.
In any case, read the whole thing! Also on SSRN.
(Make sure to read Alicea's Vaughan lecture, Conor Casey's response, and Alicea's reply. Relevant Twitter thread here; cross-posted on Divided Argument.)
