In an essay for the print edition of First Things, JWI Senior Scholar and Trustee Gerry Bradley argues that the dominant form of originalism has failed conservatives time and time again in matters of moral consequence, and a reassessment of it is in order. Originalism, he writes, does indeed remain the correct way of deciding cases in certain areas, in particular when the text of laws and the parts of the Constitution in question are written in legal language. The dominant variety of originalism, “strict moral reticence,” is not by itself sufficient in elucidating cases touching on on ultimate values, such as Bostock v. Clayton County. What conservative lawyers and judges should do in the future cases like Bostock, Bradley contends, is incorporate a wide-berth of Natural Law reasoning into the background of originalism.
Some excerpts from the piece:
“Originalism remains the correct principle for interpreting our Constitution. [Sen. Josh] Hawley’s true complaint is with a textualist methodology that is not implied or entailed by originalism, and which amounts to a strict moral reticence. In this dispensation, interpreting the Constitution according to the original public understanding of it is secondary to the end of being neutral about morality. This state of affairs is captured in the image of Supreme Court Justices settling the meaning of the Constitution as if they were umpires calling balls and strikes.”
“It certainly is not true, as constitutional conservatives properly maintained, that under our Constitution the judiciary possesses a roving commission to right all wrongs, or to impose upon the other branches of government the courts’ ideas of the morally optimal way to order the common good. And it certainly is true, as conservatives again rightly insisted, that the courts are charged with interpreting and applying the constitution we actually have, not some idealized alternative to it. But conservatives went a crucial step farther when they committed themselves to interpreting the Constitution as if it could be done without making judgments about what is morally true.”
“Whereas their adversaries do not hesitate to impose a moral philosophical position upon the country (as in Roe and 2015’s Obergefell v. Hodges), conservatives routinely claim that their hands are tied because the Constitution is agnostic. Our great charter of liberty apparently has nothing to say about the reality either of persons or of marriage. The conservatives’ Constitution is silent, whereas the liberals’ cannot shut up. Conservatives fail to see that sometimes, the answer to bad philosophy is not no philosophy but better philosophy.”
Read the full piece here.