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Originalism and Morality: A Public Discourse Webinar

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flag, constitution

A Three-Step Program for Originalism

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While some legal scholars have criticized the recently leaked draft Dobbs majority opinion on the basis that it is not originalist, they are overlooking two important points—originalism contains a place for stare decisis (i.e., legal precedent) and American constitutional practice is currently an eclectic mix of originalist and nonoriginalist aspects.
Supreme Court chambers

The Smith Case, Religious Freedom, and Originalism

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One might wish that the Free Exercise Clause, as originally understood, had provided a basis for more judicial protection of religious rights than it does. But wishing doesn’t make it so. Judges don’t have the authority to interpret the Constitution to get better policy results, even if those are really, really important results.
Declaration of Independence with an American flag

In Defense of Common Good Originalism

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Many key constitutional clauses were drafted as compromise provisions intended to win over the members of intensely warring intellectual and political tribes. This ought to cut strongly in favor of a dispositional humility about an interpreter’s ability to definitively discern the most accurate original meanings of these clauses. In these situations, statesmen ought to err on the side of certain substantive ideals of natural justice, human flourishing, and the common good.
Constitution

The Bad History of Common Good Originalism

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Common-good originalism’s historical understanding of the Constitution’s adoption is perhaps its weakest link. The Constitution emerged from a negotiated consensus of a complex popular sovereign—a fact that ought to reinforce a judge’s commitment to the written text.

The Unsoundness and Imprudence of “Common-Good Originalism”

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After decades of struggle, the conservative judicial project has finally produced a possible working majority of five originalists on the Supreme Court. There are plenty of reasons to wonder how consistently they will coalesce in practice and how willing they will be to revisit wrong precedent. But trashing Antonin Scalia’s originalism and replacing it with Josh Hammer’s idiosyncratic, results-oriented version isn’t likely to help matters.
Supreme Court

Toward a New Jurisprudential Consensus: Common Good Originalism

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Common good originalism is the best constitutional complement to a politics of a conservative restoration. It is ordered toward a profoundly and distinctly conservative politics that elevates the concerns of nation, community, and family over the one-way push toward ever-greater economic, sexual, and cultural liberationism.

Originalism, Kavanaugh, and Virtue Ethics: A Response to Michael Sean Winters

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Virtue ethics can help originalism maintain its integrity.

Presidential Self-Pardons, the Framers at Philadelphia, and the Work of Originalism

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As the late Justice Scalia was fond of pointing out, the views of individual lawmakers in the midst of debate are not themselves the law we must interpret. Neither are the votes taken in a deliberative body rightly viewed as votes on anyone’s interpretation of the text under discussion. The text that they passed, not what they said about what they passed, is the law.

In Defense of Originalism

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Originalism is the commonsense, traditional American approach to constitutional interpretation, not a contemporary conservative invention.
Public Discourse

The Troubling Stakes of the Originalism-Living Constitutionalism Debate

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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.
Public Discourse

Originalism and Judicial Restraint

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Originalism must guard against an overconfident reliance on history. Restraint and judicial caution are needed in an age of judicial overreaching.
Public Discourse

Is Originalism Dead?

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In his latest book, law professor David A. Strauss attacks the idea of originalism and champions the “living Constitution.” Matt Franck explains why he’s wrong.
the US Constitution

The Constitution and Its Critics

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Rana’s history prompts us to reflect on how we ought to conceive of American identity and defend the Constitution’s anti-majoritarian checks and balances in the twenty-first century.
Supreme Court

A Lawless Court Gives Us a Lawless Presidency

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The president is not a king above the law. With the failure of the courts and political institutions to preserve and enforce these principles, it falls to us, who are the first and last check on government, to do so with all the lawful powers at our disposal as citizens.  
SCOTUS

The Court Curtails the Administrative State

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The modern administrative state rests on a dismissal of separation of powers principles. But for the Left to even use the language of separation of powers suggests some victory for conservatism.
Clarence Thomas

A Constitution for Everyone

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Originalism is a theory of interpretation, but like any form of legal interpretation, it means little unless applied to facts. And facts are wrapped up in stories. Judge Thapar’s book is a reminder not to forget this.
torn American flag

Sociology in the Age of Trump: The Clash of Deep Stories on the Left and Right

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If the stories can change, it stands to reason that they can improve—or deteriorate. Responsible cultural elites of the Left and Right alike would do well to consider not only what claims they make explicitly, but what kinds of stories underlie those claims, and whether these are the right stories to tell.
Constitution

Getting Authority Right: The Common Good and “Popular Sovereignty”

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Alicea repeats often and correctly the age-old insight that responsibility to care for the common good belongs to each member of the political community. But an equal sharing of authority does not follow from that shared responsibility, and no account of the Constitution’s moral authority will succeed if it presumes otherwise. 
written and unwritten constitutions

Written and Unwritten Constitutions

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The analogy between individual and political constitutions illustrates the fact that no legal order can be fully encompassed by written instruments, and so it must be elaborated by reference to its underlying historical and philosophic dimensions.
US Constitution

How to Lose Sight of the Constitution

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Such a substantial proportion of this book is devoted to textualism, originalism, and traditionalism that it is hard to escape the sense that Sunstein protests too much by repeatedly claiming that his moral-philosophizing “reflective equilibrium” is “the only game in town.” And in truth, he leaves his own preferred approach woefully underdeveloped.
Founding

Is the American Founding Christian, Secular—Or Something Else?

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In The Classical and Christian Origins of American Politics, Kody Cooper and Justin Dyer successfully refute the still (somehow) influential interpretation of the American Founding as a secular-not-Christian project. However, they do so without successfully establishing their preferred alternative, the Christian-not-secular interpretation. There is a vast middle between these two extremes whose existence slips through the authors’ fingers again and again like a well-greased elephant.
Jean-Francois-Millet-the-angelus

How Should Conservatives Respond to Revolution?

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We are attempting a struggle against a dehumanizing revolution—but we are all attempting to overcome the same common threat. City building isn’t pretty, and it isn’t all that calm. At the same time, in our efforts against revolution, we should not respond with our own revolution.
Harvard_Law_School_Library_in_Langdell_Hall_at_night

James Bradley Thayer, Legal Realist?

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James Bradley Thayer sternly taught an iron discipline in constitutional judging of holding one’s own views—even one’s conviction that one understood the Constitution better than the legislature did—firmly in check. And he taught this because he believed it was the only approach consistent with the Constitution’s text, purposes, structure, and traditional interpretation.
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