Virtue ethics can help originalism maintain its integrity.
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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.
Originalism is the commonsense, traditional American approach to constitutional interpretation, not a contemporary conservative invention.
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 must guard against an overconfident reliance on history. Restraint and judicial caution are needed in an age of judicial overreaching.
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 Constitution itself directs us to use metaphysical and moral truths that lie beyond it in its interpretation. Indeed, a contemporary judge can be faithful to the Founders only by relying on these truths.
If you really must attack other conservatives, take the time to figure out what they actually said and why, and interpret them charitably, the way you would wish to be interpreted. You owe this even to your enemies, but other conservatives are not your enemies but your friends. After that, have some definite arguments.
In Rucho v. Common Cause, the Supreme Court’s recent case on gerrymandering, both the majority and the dissenting opinions were heavy on pragmatics and light on constitutional interpretation. The heart of their disagreement is a difference of visions of how the judiciary ought to interact with the electoral process.
In the wake of last month’s decision, the only remedy left to the people of Kansas is to pass a constitutional amendment to declare that there is no “fundamental right to abortion” in the state’s constitution and to allow the legislature to make reasonable laws about abortion.
To faithfully apply the original public meaning of liberty protected by the Constitution—that is to say, to be a faithful originalist—one must acknowledge that both a contractarian view of individual liberty and a Whig view of the liberty to make laws were held by the founding generation.
Perhaps the real source of liberal anxiety is not simply that a conservative-dominated Supreme Court will become activist in the opposite direction. Rather, a more far-reaching consequence for the American left would be a repositioning of the judicial branch as equal—not superior—to the legislative branch.
For ten years, Public Discourse has drawn on the insights of academics and scholars, political and legal advocates, and men and women of letters to offer the reading public thought-provoking reflections on the timeliest issues and the most timeless dilemmas of our public life.
Our Constitution is not just positive law, stipulated and contingent on political will. American constitutions do incorporate pre-positive law, often expressly. And that law is neither mere text, nor axioms, nor political ideals. The first in a two-part series.
We can’t undo the past, but we can avoid repeating its mistakes. Here’s how.
Love of country and love of the Constitution—a simple and pure patriotism matched with a sophisticated historical sensibility—run through a new collection of Justice Antonin Scalia’s speeches.
Our nation was founded on biblical principles as a haven for devoutly religious dissidents. We forget our Judeo-Christian origins and the founders’ commitment to freedom of religion at our peril.
What does natural law say about the power of judges in constitutional systems of government?
Michael Stokes Paulsen has identified six courses of action that might effectively curb the Supreme Court’s abuse of judicial authority.
What would happen if a justice with the judicial philosophy and record of Justice Ginsburg were to replace Justice Scalia on the Court?
The gross misappropriation of executive power to utterly remake the meaning of very basic legal terms threatens not only the structure of our government. It threatens the rule of law itself. This distortion of legal language is a particular threat to laws concerning women.
The students of Justice Scalia were not merely those who took his classes or served as his clerks. Through his opinions, he taught countless others the importance of the rule of law, republican self-government, and the virtue of courageous persistence in a good cause.
For his immense contributions to constitutional discourse, his sound constitutional vision, his rigorous and vigorous opinions, his fearlessness and peerlessness, Justice Scalia is one of the greatest Supreme Court justices of all time.
With the death of Antonin Gregory Scalia the nation has lost one of its greatest jurists and a man who embodied the principle of fidelity to the Constitution.
Justice William Brennan’s vision of a living constitution continues to dominate contemporary constitutional interpretation, in spite of its troubling inconsistencies.