The Troubling Stakes of the Originalism-Living Constitutionalism Debate

Any defense of constitutional originalism depends on accepting the principles of natural law and natural rights on which the Constitution was founded. Unfortunately, these principles no longer have meaning for most judges, politicians, and ordinary citizens today—which has troubling implications for the future of our republic.

The passing of the greatest constitutional originalist of our time invites us to reflect on the meaning and value of reading the Constitution as Justice Scalia did—in terms of the text itself as its authors intended and the public understood it. There seem to be three primary reasons why the originalist approach exemplified by Scalia might be appropriate and desirable: It prevents judges from acting as legislators or policymakers, it upholds the idea of the rule of law by respecting the fundamental law of society, and it preserves true and good principles of government that the founders embraced and codified in the Constitution.

Originalism is often defended solely on the basis of the first two reasons—preventing judges from “legislating from the bench” and respecting the Constitution. Although these may indeed be good reasons, they are only persuasive reasons for originalism insofar as the third reason is embraced as well: the truth and goodness of the founders’ political principles. Without this last reason, it is unclear why there is anything wrong with legislating from the bench, or why we should respect the Constitution as originally understood. This poses a serious problem for originalism in contemporary American society, because most citizens, politicians, and judges have long since abandoned the founders’ political principles as untenable.

The Fundamental Principles of the Revolution and the Constitution

It is not difficult to find the political principles that the American founders intended to be reflected in the Constitution. The Constitution’s framers were explicitly attempting to codify and apply what Madison referred to in Federalist No. 39 as “the fundamental principles of the Revolution,” which were quite obviously expressed in the document that “declared the causes” for the Revolution: the Declaration of Independence. Although the list of monarchical abuses is important for understanding subsequent American constitutional development, it is the “preamble” paragraph containing the famous references to “unalienable rights” and the purposes of government that would furnish the foundational principles for the new American political order.

These foundational principles were relatively simple: “Nature’s God” gave “Laws” and “Rights,” and governments derived whatever legitimacy and justice they possessed from their protection of these rights and their application of these laws. Doing so—protecting natural rights and legislating with a view to natural law—would bring into being what the founders referred to as “republican” government.

Many of the Federalist Papers, and especially the best-known ones, are devoted to showing how the Constitution attempted to instantiate this republican government. Federalist No. 10, for example, attempts to show how the “well-constructed Union” brought into being by the Constitution would control “factions,” that is, groups opposed to the “public good and private rights.” These touchstones of “public good” and “private rights,” the securing of which constituted what Madison referred to as the “great desideratum” of politics, were understood in terms of the Declaration’s basic principles: natural rights and natural law.

Federalist No. 51 is equally clear in holding up the principles of “justice and the general good” as the goal of government and civil society. In the course of making this argument, Madison discusses a “state of nature” in which the weaker are unjustly subjected to the violence of the stronger. As Locke explains in his Second Treatise, both a “law of nature” and natural rights exist in this hypothetical state of nature, and it is their existence that underpins the legitimate purposes of government: protecting these natural rights and enforcing obedience to the law of nature.

The Reasons for Originalism

The original intentions behind the words of the Constitution, and the principles informing the design of government it contains, are inextricably bound up with the founders’ understanding of “republican” government. This understanding is reflected most clearly in “the fundamental principles of the Revolution:” the principles of natural rights and the natural law. An acceptance of the third reason for defending “originalism” requires, then, an acceptance of the ideas of natural rights and the natural law.

Without an acceptance of this third reason, it becomes more difficult to support either of the first two. Why is there anything wrong with unelected judges legislating for us? Is it just that we might disagree with the content of their legislation in a given case, or do we have a principled reason for opposing it? Practical reasons, such as the way in which popular interests and perspectives contribute to well-rounded and widely acceptable public policies, don’t by themselves justify strong or absolute opposition to policymaking by judges.

The reasons why the founders didn’t authorize the Supreme Court to legislate involved, rather, their natural morality-based political principles: The rights-possessing and duty-following nature of individual human beings requires that they legislate for themselves, through the mechanism of representation when necessary. The natural rights to life, liberty, and the pursuit of happiness add up to a natural right of self-government. Because the purpose of government, according to the social contract theory the founders endorsed, consists primarily in the protection of natural rights, this individual natural right of self-government must be reflected in the collective government of a political community. The Constitution is supposed to be a vehicle for the self-government of “we the people,” and not a replacement of it.

Why, though, should this Constitution be respected if the political principles it reflects are incorrect and obsolete? The founders, after all, were not gods. Political stability and the rule of law require some measure of continuity in the fundamental law of the land, but not necessarily an originalist interpretation of this fundamental law. In arguing that we should adhere to the original understanding of the Constitution, more than practical or historical considerations are necessary.

Natural Morality and Written Constitutionalism

All of this leaves us with a much deeper and more serious problem than that of deciding between rival methods of constitutional interpretation. It leaves us, in fact, with a real constitutional crisis. Words are significant only insofar as they represent ideas, and the words of the Constitution represented the political ideas of those who framed and adopted it. The most fundamentally relevant of these ideas were written down in the Declaration of Independence, which Jefferson described as an “expression of the American mind” of the time.

Very few Americans, however—and even few originalists—would endorse the principles of natural morality expressed in the Declaration. Politicians can no longer invoke “nature” at all as a source for political principles, whether in terms of natural rights or natural law. One could scour popular and academic articles, public speeches, and judicial decisions of recent decades and find hardly a mention of either.

“The American mind” isn’t what it used to be, and the Constitution, as a result, has ceased to have meaning for American society. It’s not that we simply have an insufficient respect for the Constitution. We no longer possess the most important ideas that were originally signified through the words of the Constitution. When the Supreme Court reads various imaginary rights into the provisions of the Constitution, there is something even deeper and more troubling going on than biased misinterpretation. The Constitution actually has no meaning for judges, politicians, and most ordinary citizens because the ideas that originally gave it meaning have been discredited and abandoned.

There is, in other words, much more than constitutional interpretation at stake in the question of the originalist approach. The question is whether we will endorse the inspiration for written constitutionalism in general—that there are eternal and permanent truths such as those expressed in the Declaration—or whether we will follow all other societies in human history, as Publius feared, and abandon ourselves to “accident and force.”

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