Originalists Need the Classical Legal Tradition 

Consider where American politics stands right now: the Supreme Court has a solid conservative majority, and with it have come victories that once seemed impossible: Roe is gone; affirmative action has fallen; the administrative state is on life support; and text, history, and tradition have regained their proper place in constitutional interpretation. Beyond the Supreme Court, the lower courts are now filled with a rising generation of principled conservatives, hundreds appointed in recent years, with more on the way. Young men are moving to the right in droves. And conservative law schools like Brigham Young University, Pepperdine, George Mason, and Regent are rising in the rankings and gaining credibility. 

This is cause for celebration and gratitude. But victory often breeds complacency, and the left is not giving up. Ironically, however, the greatest threat to the conservative legal movement might not come from the left; it may well come from within. A fracture has opened—one that, if left unaddressed, could divide the conservative movement at the very moment it needs unity most. 

I’m talking about the growing split in the conservative legal movement between the originalists and the “common good constitutionalists,” a camp that draws openly on the classical legal tradition (CLT)—an older model of law that roots government in natural law and orients it toward the common good. The split is particularly significant because the next generation of conservative lawyers is not like our generation. They grew up through COVID and the rise of aggressive DEI ideology. They see things differently, and they are asking tough questions that we haven’t always answered well.   

As a law school dean, I hear their concerns firsthand. Many of my conservative students describe what they see as a spineless conservatism that is “so afraid to exercise power,” one student told me after Charlie Kirk’s assassination. Right or wrong, the frustration is real. Many younger conservatives see originalism as a philosophy that ties our hands while the left operates with no similar constraints. And for that reason, many of them—maybe even a majority—are being drawn to the CLT, which scholars like Adrian Vermeule and Jeremy Christiansen are reviving. 

How should we respond? Is CLT a heresy deserving excommunication or a different interpretation that sheds light on the truth? Some in the movement have rejected common good constitutionalism as a baptized version of living constitutionalism and deem its followers heretics with whom there can be no fellowship. I believe that reaction is a mistake—for both practical and substantive reasons. Practically, if we fracture over this debate, we risk losing the future of the conservative legal movement itself. Substantively, we owe it to our own commitments to engage their arguments seriously, listen with humility, and test their claims against our understanding of law, history, and the common good. 

On the substantive side, I begin with a simple question: if you lived in a constitutional republic that enshrined, for example, a right to abortion, mandatory affirmative action, positive rights to education and healthcare, and state educational control over children, would you still champion originalism with the same conviction? Would you accept that such a constitution, interpreted according to its original public meaning, protects these so-called “rights”? Or would you argue that the text must be read in light of higher law principles that transcend it? 

I pose this question not as a living constitutionalist or common good constitutionalism adherent, but a committed originalist. I love history and tradition, and I believe that originalism embodies the higher law principles of the rule of law and limited authority. Without it, judicial tyranny would reign and the republic would be lost.  

And yet, my hypothetical gives me pause—and it should give us all pause. It reveals the danger of making originalism an end in itself rather than a means. If our fidelity to “original public meaning” becomes detached from the moral nature of law, we risk sliding into a kind of sanitized positivism that offers procedural legitimacy while masking substantive injustice. This is why Professor Jeremy Christiansen’s argument that the “Classical Legal Tradition [Is] Our Tradition” deserves serious attention.   

We’ve already seen glimpses of this. In Bostock v. Clayton County, Justice Gorsuch—a remarkable jurist and committed textualist—held that Title VII’s prohibition on sex discrimination necessarily includes gender identity and sexual orientation. Even if one believes (as I do) that he misapplied textualism, the decision illustrates what happens when interpretation becomes unmoored from the higher principles that give human law its purpose. Originalism without a moral anchor can drift into the very relativism it seeks to resist. 

To summarize, the conservative legal movement should do at least two things in the face of the rising tide of the CLT. First, don’t excommunicate CLT followers from the conservative legal movement. We cannot treat them as heretics or progressive infiltrators. They affirm many of the same first principles originalists do, including a rejection of judicial tyranny, a high regard for history and tradition, and morality as a precondition for liberty. We must treat them as allies, particularly because the younger generation is increasingly drawn to the CLT. These young lawyers are essential to our long-term mission. We must welcome them, listen to their concerns, and humbly engage their objections.  

Second, let’s refine our originalism with genuine intellectual humility. Many have already rejected the positivist strand of originalism that reached its nadir in Bostock. And we’ve seen originalists like Justice Thomas and Josh Hammer argue for a natural law-informed originalism. These are healthy developments. Viewed as an ally, the CLT will anchor our originalism to ensure our jurisprudence doesn’t become untethered from the substantive, moral nature of law.  

Many on both sides will reject this outright. It’s not possible, they say. The CLT and originalism are built on fundamentally different presuppositions—the former rooted in natural law and oriented toward the common good (substantive), while the other is rooted in popular sovereignty and oriented toward democratic legitimacy (procedural). We can’t yoke ourselves with an unbeliever, they insist. An alliance of convenience for a time? Maybe. But fellowship in the same camp? Never. 

I understand this objection, but I don’t believe it’s insurmountable. The nature of law and the lawgiver Himself mandate that both process and substance matter. One without the other leads to chaos. Consider what each tradition brings to the table. Originalism provides crucial procedural constraints and interpretive discipline that prevent judicial tyranny. It recognizes the limited authority of government and the necessity of constraining judicial power through fidelity to text and historical meaning. These are not minor virtues; they are essential safeguards against unjust exercises of power and prerequisites to ordered liberty. 

The CLT, by contrast, provides the substantive moral framework that ensures that the endeavor of “law” remains oriented toward its fundamental end: creating a just society that reflects the eternal law. It reminds us that law serves reason, not merely will. It rightly insists that justice, truth, and reason are the highest principles, not the sheer opinion of the majority. Originalism needs this reminder lest we give way to a jurisprudence that sanctions decisions like Bostock and forgets that the entire endeavor of law must remain firmly pointed toward a moral end. 

If you don’t believe that there is room in the camp for both of us, that’s fine. But I hope you’ll believe the jurist who most influenced our own Founders: William Blackstone. 

Blackstone’s Commentaries shaped American legal thought more than any work besides Scripture. In Section Two of the Introduction, “Of the Nature of Laws in General,” Blackstone offers his brief “observations concerning the interpretation of laws” and, in the process, a framework that bridges process and substance. 

Blackstone instructs judges to discern the will of the legislator by examining five “signs”: the words of the law, its context, its subject matter, its consequences, and its reason or spirit. The first sign—giving words their general and popular meaning—is nothing other than original public meaning. But Blackstone immediately pairs this with signs that require moral reasoning. The subject matter must “always” be considered. Consequences must be evaluated to avoid “absurd” results. And the “reason and spirit” of the law may guide interpretation when meaning is uncertain. 

Together, these signs reveal something essential: Blackstone viewed law as a rational and moral enterprise, not a mechanical one. That’s why he goes on to describe a separate judicial power—equity—through which judges correct deficiencies to express what the legislator “himself would have expressed” had he foreseen the case. Because human lawmakers are finite, the law sometimes needs principled supplementation to achieve its just ends. 

More critically, Blackstone grounds this entire framework in a grander truth: human law derives its force from the natural law and the law of God. As he famously wrote, the law of nature is “dictated by God himself,” and “no human laws are of any validity if contrary to this.” Some things are intrinsically right or wrong, and no legislature may override them. In all other matters—those on which the natural law is silent—the legislature rightly governs “for promoting the welfare of society.” Either way, the moral order stands above the civil order. 

Yet Blackstone also warns that equity must not be indulged too much lest judges become legislators and law dissolve into will. Law without equity may be “hard,” he admits, but equity without law “would make every judge a legislator, and introduce most infinite confusion.” Process and substance must temper one another in any sane legal order. 

So what’s the path forward?   

Originalism should remain our dominant jurisprudential model, but it must be morally anchored by the CLT. To greatly oversimplify: originalism supplies law; the CLT supplies equity. For Blackstone, there was no contradiction. Tension, yes. A paradox, maybe. But a contradiction, no.   

We shouldn’t be surprised that this reality resists tidy compartments. The highest questions in law, as in life, rarely fit between clearly-drawn lines. We all live with paradoxes we scarcely notice—that mercy presupposes judgment, that liberty demands restraint, that courage emerges only from the shadow of fear. Indeed, the truth Himself exists eternally in the greatest and most mysterious paradox known in the universe. Our common discomfort with such tensions says more about human impatience than the truth we seek. As G. K. Chesterton once put it, “Christianity got over the difficulty of combining furious opposites, by keeping them both, and keeping them both furious.” We have a similar task: not to dissolve the paradox but to dwell within it, to work it out, letting the friction between process and substance refine rather than fracture us. 

Accordingly, the conservative legal movement must do two things. First, it must continue to champion originalism—but it must anchor it in the natural-law truths that give “original meaning” moral authority, as scholars like Joel Alicea have persuasively argued. Second, it must welcome proponents of the classical legal tradition into the fold, not as rivals but as allies who can help us tether jurisprudential order to the moral order and steward a rising generation of passionate lawyers.  

The stakes could not be higher: a conservative Supreme Court, hundreds of young conservative judges, and a cohort of rightward-moving students facing a patient, unyielding left. We cannot afford a civil war. Let’s mend the fracture, refine originalism’s moral core, and move forward disciplined in process, oriented to the good, and united in purpose. The conservative legal movement has come far, but we’re just getting started. 

Image licensed via Adobe Stock.