JWI Fellowship alumnus and associate professor of law at BYU Law School Bradley Rebeiro responded to Professor David Forte’s “Originalism and its Discontents” at JWI’s online journal Anchoring Truths. In a symposium in collaboration with Law & Liberty, Rebeiro utilizes the case study of slavery “to reconsider how we understand this tension between originalism and natural law theory to see if there remains a better way to reconcile the two.”
Some excerpts from the piece:
“Antebellum abolitionists understood the importance of how the Constitution was interpreted. The Constitution shaped the character of the nation; it taught its inhabitants the proper aims of government and, indeed, human life. The preamble stated that the Constitution’s aims were to establish justice and secure the blessing of liberty—in other words, human flourishing. Yet, from its inception, the Constitution was continually darkened by the shadow of slavery.”
“Originalists focus on interpretation as a strictly empirical endeavor—understanding the meaning of the Fugitive Slave Clause or the Fifth Amendment’s Due Process Clause, for example, does not require a moral investigation into words and how they may be reconciled with the meaning of ‘liberty.'”
“Forte reminds us that we cannot simply ‘measure every law according to its correspondence to a natural law norm.’ Such would only change the nature of the problem from eliding natural law to eliding positive law.”
“However, looking to the past and how constitutional abolitionists met the problem of slavery and the Constitution challenges us to reconsider how we understand this tension between originalism and natural law theory to see if there remains a better way to reconcile the two. What is more, it shows us that there can be a time when taking more seriously natural law principles over mere positivism can indeed be the prudent thing to do. Constitutional abolitionists understood that respecting positive law did not mean that they disregard the natural law in the way they interpreted the Constitution; nor did natural law require them to disregard the people who adopted the Constitution. But natural law did require them to understand the original meaning in a particular way—it guided them to reconcile that meaning, as much as possible (and at times quite creatively), with natural rights.”
“Originalism has great appeal given its rigorous methodology, but it lacks a certain moral quality that can redeem the Constitution’s soul. Arkes and company have importantly challenged originalism in what feels like a watershed moment in our nation’s constitutional history.”
Read the full piece here.