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Originalism and Morality: A Public Discourse Webinar

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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.

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.

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.

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.
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.
Painting of James Madison

Before Critiquing the American Founding, We Should First Understand It

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According to Steven Smith, it’s meaningless to speak of our inherent natural rights. He dismisses the Founders without properly understanding them. A return to the Founders’ natural rights constitutionalism may not offer the best alternative to protect religious liberty today. But we cannot even entertain the possibility that it might if we do not understand the principles of justice or the practical meaning of the philosophy that originally animated the Constitution.
Photo of William F. Buckley

Where Does National Review Stand Today? A Conversation with Ramesh Ponnuru and Matt Franck

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National Review midwifed and nurtured the modern conservative movement into being. Conservatism today is in a very different situation from the one that Bill Buckley confronted in 1955. There is this vast conservative enterprise now; it’s kind of hydra-headed. But the basic need is, first, to think about the circumstances in which we find ourselves and how to apply conservative principles to them—or a conservative disposition, if one prefers—and second, how to build a coalition that is large enough to take these ideas off of the shelf.
Protest outside Supreme Court

Does Dobbs v. Jackson Threaten The Supreme Court’s Legitimacy?

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The only way that we can really meaningfully grapple with the Supreme Court's legitimacy is to ask: what was it actually built to do? Roe was wrong. It had become the political equivalent of a black hole, totally devoid of substance, but with such immense gravity that it distorts everything around it. Abortion, of course, isn’t going away as a political issue. The difference now will be that instead of having debates about Roe, we’ll debate about abortion.
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Calvinball Constitutionalism

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Adrian Vermeule’s new book, an attempt to rescue American constitutional law by recurring to the “classical legal tradition,” is undone by the author’s unreasonable attack on originalism and his inattention to the Constitution and its history.
Statue in front of Supreme Court

The Supreme Court and the Price of Diversity

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The question is not whether diversity is desirable or undesirable. Most of us can appreciate that there is value in diversity. The real question concerns what price we are willing to pay for it.
Supreme Court building

Supreme Court Nominations: A Primer to President Biden

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Public Discourse has hosted arguments about the Court since the publication’s inception. Here, from our archives, are some essays which remain timely, and which might provide some needed perspective on the role of the Court, originalism, and the role of morality and natural law in the Court.
Robert George

From the Archives: Can We Still Reason Together? A Conversation with Robert P. George

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Where there is a mutual commitment to truth and truth-seeking, relationships can be built between religious believers and secularists, and they can indeed reason together. The minimum condition is this: interlocutors, however wide and deep their substantive philosophical or other differences, need to share the conviction that business between them is to be conducted in the proper currency of intellectual discourse—namely, reasons, evidence, and arguments.
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