Senior JWI Scholar David Forte responds to the co-authored piece “A Better Originalism” at JWI’s online journal Anchoring Truths. In a symposium in collaboration with Law & Liberty, Forte defends the place of positive law in a “correct originalism.”
Some excerpts from the piece:
“The authors coronate a new form of originalism, a ‘better originalism,’ an ‘originalism of moral substance.’ If indeed ‘we are all originalists,’ then the inevitable question is, do we espouse the same originalism? If the answer is no, then the further question arises: what is the correct originalism, the real original understanding, and is it worthy of a judge’s loyalty and enforcement? A ‘better originalism’ is better only if it is truer. Whether the true originalism is also ‘better’ in the sense of being more conducive to the common good, is another question.”
“That natural law norms are foundational to the American Constitution is undeniable. That slavery was an internal contradiction is true only because natural law norms are foundational. The authors, therefore, are correct to assert that the Constitution cannot be understood apart from its natural law grounding. (I do not here revisit the issue of slavery in the Constitution, except to say originalists who affirm a Constitution grounded in natural law norms must look anew at that moral contradiction).”
“But though natural law norms may be the ultimate source from which constitutional norms and structures are derived does not mean that every constitutional issue can be reduced to a matter of finding the natural law answer. The positive law of the Constitution has a life and integrity of its own.”
“Let us take the natural law norms of gregariousness, friendship, and sociability deriving from the nature of the human person. Do these moral imperatives mean that every law regulating labor, or zoning a neighborhood, or setting a curfew, or even requiring social distancing should be held by the courts as valid or not according whether the judge thinks the law sufficiently furthers sociability? The question answers itself. So long as the legal system is attuned to its grounding in natural law, the solution to legal issues should remain within the bounds set by the system’s particular positive law and the principles underlying the positive law.”
“Should Justice Neil Gorsuch cause us to cancel originalism? I think not. The Constitution is a created thing. Seen as a whole, it is a coherent structure that looked to persist over time, to effectuate the well-being and liberties of the people, and to deserve the reverence accorded to it. It was formed in a covenantal spirit, ordained for ourselves and our posterity. When we look upon a work of art, Michelangelo’s Pieta, for example, we see the whole. Our eyes are drawn here and there. We don’t admire it for its marble or the principles of aesthetics. We admire it as it had come to be created. So do originalists admire the Constitution. They see it as a whole, existent, moral, and legal presence.”
Read the full piece here.