We offer here a very few thoughts — essentially, only one thought — about a recent argument for a kind of generic originalism. The argument was published by Joel Alicea, a law professor at the Catholic University of America, in a draft paper titled “The Moral Authority of Original Meaning.”[1] Given that the paper claims to ground its argument in the classical legal tradition; that it has been heavily promoted by the quasi-official organs of legal originalism, such as the National Review and the Legal Theory Blog; and that the paper is, if nothing else, strikingly ambitious, a brief response seems warranted.
Alicea correctly notes the critical role that legitimate political authority plays in securing the common good. In the United States, Alicea argues, the people are sovereign and the ultimate legitimate political authority. He therefore claims that “some form”[2] of originalism is required to preserve the people’s legitimate authority by ensuring their posited commands are respected and not displaced by fiat, because respecting this authority is essential to achieving the common good.[3] Looking beyond the United States, Alicea suggests that some form of originalism may be required to preserve the people’s legitimate authority in any system where they are the sovereign authority — wherever there is a “regime operating under a constitution (written or unwritten) that is designed to serve as a higher form of positive law than acts of ordinary politics.”[4]
Alicea says his purpose is merely to show that, given the classical legal tradition’s high respect for law posited by legitimate political authority, “some form of originalism is required.”[5] He does not argue that this version, or that version, or some other version of originalism (there are now probably a baker’s dozen) is affirmatively required by the classical legal tradition,[6] its understanding of the right relationship between background principles of legality (ius) and posited law (lex), or the importance of respecting posited law.[7]The key question then becomes: what exactly does Alicea mean by this generic, lowest-common-denominator version of originalism? The answer is thin gruel.
When Alicea states that “some form” of originalism is required, what he seems to mean, and ends up more or less saying,[8] is merely this: first, all officials are compelled to faithfully adhere to and interpret the meaning of X, Y or Z provisions posited and fixed by a legitimate political authority at a given historical point in time – whether 1789, 1868, or 1992 – unless and until those provisions are lawfully repealed or replaced; and second, interpreters of the law (such as judges) ought not to displace the posited law by reference to all-things-considered moral decision making.
Unfortunately, Alicea has here tried to relabel as “originalism” what is really the common legal heritage of almost all of mankind, yesterday and today. (This effort to appropriate all constitutional law under a label evolved by American legal conservatives in the 1970s is best seen as an extreme version of American conceptual and temporal parochialism, an issue we return to shortly). No developed legal system anywhere and at any time, to our knowledge anyway, fails to respect these two thin constraints. They are banalities, truisms, universally understood and accepted by all remotely sensible legal systems — the vast bulk of which would laughingly, or with some confusion, reject the label “originalism.” The classical legal tradition does not, of course, deny either of them; in particular, it does not at all allow judges to engage in all-things-considered moralizing at the point of application, as we have explained. The classical judge is constrained not only by appropriate respect for posited law, but also by legal role morality (itself a crucial aspect of political morality), by second-order rules of jurisdiction and deference, and by the objective existence of the background principles of ius.
Stripped of its rhetorical garb, then, Alicea’s claim adds nothing at all distinctively “originalist” to what we take the classical legal tradition to entail, and for that matter the modern legal traditions of most of the world. Generic originalism is a form of what Dworkin called “Pickwickian positivism” — here, Pickwickian originalism, a mere simulacrum of a claim, with very little distinctive content indeed. This is of course precisely why figures like Jack Balkin (the most-cited originalist legal scholar) can cheerfully call themselves “originalists,” albeit of the “living” sort, while making all the same progressive arguments about issues like abortion and same-sex marriage they have made in other registers.
The crucial question that really divides Pickwickian originalism both from other, more substantive and controversial versions of American originalism, and indeed from the common-law and civilian approaches that are so dominant around the world and across legal history, is the immensely more difficult question of how to interpret the posited law — how precisely one ought to faithfully respect the meaning of this or that historically posited and fixed provision, from 1789 or 1868 or what have you. The fighting question, in other words, is how interpretation should work, given the mandate (which no one sensible denies) to respect the legitimate authority’s choice in positing what it did posit. If Alicea had grasped this nettle, he would have had to confront the fact that the answer to this further question is just not at all self-evident, even or especially among originalists themselves, who routinely quarrel over critical issues of interpretive method. To adapt a phrase, there is nothing that originalism just is. Thicker choices about method are necessary, and must be justified instead by additional arguments from political morality, as we have argued elsewhere both jointly and severally.
In particular, no amount of insistence on the fixation of meaning by posited law can answer the questions that arise when, due to the inherent limits of language and the foresight of lawmakers, the posited law is indeterminate at the point of application. At what level of generality should one read the putatively fixed meaning of posited constitutional provisions (like “the equal protection of the laws”), especially as applied to questions arising decades or centuries later, such as the legal status of segregated schools, abortion, and gender identity? What to do in hard cases, where the putatively fixed meaning is vague, ambiguous, or conflicts with other equally legitimate sources of law, such that interpreters are necessarily left with interpretive discretion at the point of application?[9]
Quite remarkably, Alicea says almost nothing about the limited determinacy of the positive law — one of the core problems of legal theory for millennia, from the Roman classical lawyers to Aquinas to Hart. Instead he focuses on a very different problem: what to do when the positive law and natural law squarely conflict.[10] This is, as we have argued on several occasions, a sideshow — a case to which the classical theory paid and theoretically needs to pay relatively little attention, in part because classical lawyers usually avoided it through interpretation. For the classical law, the main issue is what to do when the positive law is not self-interpreting, and this is the central case in which the judge recurs to background principles of ius. Alicea simply overlooks this.
Answers to these interpretive questions may fully satisfy Alicea’s axioms while also undermining the putative stability of posited law. Balkin, for example, does not argue that interpreters have the authority to change the fixed meaning of law. Rather he argues for reading that very meaning in a particular way, at a sufficiently high level of generality to converge upon the standard series of views endorsed by legal progressives. (One imagines Balkin giving the Federalist Society a mischievous wink at such moments). Alicea’s uncontroversial generalities do not and cannot come to grips with these crucial issues.
In short, the classical legal tradition, and indeed every developed legal tradition of which we are aware, already requires respect for historically posited constitutional law unless and until duly changed, and this respect naturally cabins the interpretive discretion of current officials addressing current legal disputes. It follows that Alicea has said nothing that is even prima facie in tension with our interpretive arguments. In other words, the “originalism” advocated for in this quasi-official version of the theory seems to be an originalism in name and rhetoric only — a statement of sociological affiliation with a movement.
Indeed, we cannot help but observe that this brief for uncontentious arguments anchored in the classical tradition, now decked out in originalist finery, is just another example of the intense parochialism that animates much of constitutional theory in the United States. If one makes so bold as to travel to the faraway lands west of California, east of Massachusetts, north of Michigan or south of Texas one will find countless constitutional systems around the world which designate “the people” as the highest legitimate political authority, and whose officials and judges approach the binding posited commands of that authority specified in constitutional text with great respect and a desire to faithfully give effect to those commands, not to displace them. But virtually none have thought to designate their doing so as a species of “originalism” – a peculiarly American (and Americanist) juristic tic, and in historical perspective a recent creation. In sum, we feel confident in reiterating our statement, in our recent Harvard Journal of Law & Public Policy piece, that if “the name of ‘originalism’ is retained as merely an empty statement of sociological identity, but all the content is classical, our view will have prevailed.”
Conor Casey, Assistant Professor, University of Liverpool School of Law & Social Justice.
Adrian Vermeule, Ralph S. Tyler Jr. Professor of Constitutional Law, Harvard Law School.
[1] Joel Alicea, “The Moral Authority of Original Meaning” (Forthcoming 2022) Notre Dame Law Review 1.
[2] Id., 42.
[3] Id., 8.
[4] Id., 47.
[5] Id., 42. Author’s emphasis.
[6] Alicea does, however, appear to reject the positivist turn in originalist thinking – the argument that some stripe of originalism is conventionally understood by a critical mass of officials as the law of the US constitutional order. He states instead that it “is possible that originalism is required as a normative matter in our system but that our positive law has often failed to conform to originalism, which would be a reason to reform the positive law.” Id., 47.
[7] Id., 42, 48 (“Whether the correct way to understand the people’s commands is through the original public meaning of those commands, the people’s original intent, or some other formulation of original meaning is … a complex question. I have deliberately used vague formulations—such as the need to “understand” the people’s commands as they would “understand” them—because this is not the place to address that issue.”) (Internal citations omitted).
[8] Or so we read the not entirely pellucid discussion at id., 42-48, which is also the core of the paper. Confusingly, around 52-55, Alicea might be read to veer off into a stronger version of originalism. As the main argument seems purposefully to avoid anything but the thin, generic version, we will ignore that later discussion; the whole argument seems ripe for clarification.
[9] We will bracket and ignore the occasional suggestion that in hard cases, judges suddenly switch from doing interpretation to doing a different activity altogether, perhaps called “construction,” in which they act essentially as lawmakers by making choices on discretionary grounds — a suggestion that captures neither the arguments and reasoning of judges, nor their self-understanding.
[10] 49 et seq.
