Can Originalism Overcome Our Crisis?
Editor’s Note: In times of war, a regime’s tools and capacities are tested. For most of history, this has been a physical test: a simple balance of arms against arms. But we are now engaged in a different kind of conflict: a cold civil war; a political, social, and spiritual fight for control over our nation. It is our political tools, our ways of governing and thinking, that now face the test of wartime.
For conservatives of the past few generations, one of those essential tools has been originalism: the doctrine that law must be interpreted strictly by its original public meaning, meant as a bulwark against activist judicial interpretations. In recent years, many scholars and practitioners on the Right have argued that originalism overlooks much of the American political and legal tradition, and so deprives us of vital ammunition. Staunch originalists, meanwhile, fear that these reformers could open the floodgates to a woke victory, by conceding core points about moral reinterpretation of the law.
Frank DeVito, an attorney and widely published writer, surveys the debate and wonders whether originalism can survive. Can the conservative legal movement be strengthened by moral critiques, empowered to combat the woke regime with an equally robust vision of politics, of the good, and of the law? Or would pouring new wine into old wineskins merely prove that the Right is not up to the task at hand — that it is not prepared for war, and that victory for the enemy is all but guaranteed?
For decades, the conservative legal movement has been united by a single concept. To be a part of the movement, one must be an “originalist.” Since the ascendance of originalism in the 1980s, most right-of-center lawyers have sought to check judicial overreach and progressive activism by interpreting the law according to its “original public meaning” — that is, how the text would have been reasonably understood by an informed reader at the time the law was enacted. But beneath this apparent unity, disagreement about originalism’s theoretical foundations abound, even within Federalist Society circles. And in practice, the concept has not yielded consistent results, even in the hands of celebrated originalist judges.
Two highly visible theoretical critiques of originalism from the right, Hadley Arkes’s constitutional interpretation based in natural law and Adrian Vermuele’s common good constitutionalism (“CGC”), have laid bare these fissures. Consequently, many young conservative lawyers and law students now have doubts: Is originalism a sound doctrine? If so, how flexible is it? And should it properly remain the glue that binds together all right-of-center lawyers, judges, and scholars of the law?
If the conservative legal movement wishes to retain its influence on American law, it must answer these questions, or at least take them seriously. This is not a mere academic exercise for those who attend Federalist Society lectures. In order to capture the minds and hearts of the next generation of conservative lawyers, originalism will need to engage seriously with the natural law and the classical legal sources that preceded the U.S. Constitution.
At few points in our history have the stakes of such debates been as high as they are now. The woke left is a grave internal threat, intent on replacing the old constitutional order of America with a new regime built on its own ideological foundations. It has already claimed important victories, as so much of our government is now conducted with no connection to the Constitution — and, often, in direct contradiction of it. If conservatives are to succeed against this challenge, they must offer both a better legal theory and a stronger legal praxis than their opponents on the left.
Interpreting a law according to its original public meaning must be confined to its proper role — to prevent judges from imposing their preference for what the written law ought to say rather than what it says. Beyond this, originalists must frame the positive law (the written Constitution and statutes) within the greater web of natural law, common law, and other sources that form the complete fabric of the Western legal tradition.
Recently, originalist scholars have accepted some of the critiques of thinkers like Arkes and Vermeule and begun to make promising responses, shoring up the movement’s foundations and strengthening its coherence. The fate and future of the conservative legal movement depends on whether, and how, originalism continues in these efforts.
Originalism began its ascent as the dominant American conservative legal theory in the 1960s, solidifying its position in the 1980s with the rise of the Federalist Society and support from intellectual giants such as Justice Anton Scalia, Judge Robert Bork, and Attorney General Edwin Meese. As progressivism took over American institutions at an alarming rate, conservatives found strength and comfort in a kind of “dead letter” interpretation of law. Radical 1960s concepts could not creep into interpretations of a constitutional provision if the methodology insisted on interpreting the words according to their meaning in 1789, 1791, or 1868.
Original public meaning is, at the very least, a crucial interpretive tool for understanding the law. After all, in a system of government where the representatives of the people enact written laws, it is important that judges apply those laws in a way that is consistent with what the lawmakers actually wrote. Otherwise, judges can simply replace the meaning of the law passed by the legislature with whatever policy preference has become fashionable. Does “cruel and unusual punishment” mean what it meant when the Bill of Rights was ratified? Or does it mean whatever 21st century sensibilities feel is cruel and unusual today?
But originalism as currently practiced is not so straightforward. First, the originalist movement has suffered practical blows, particularly in the form of Justice Gorsuch’s majority opinion in the Bostock case in 2020. This opinion, written by a bona fide originalist nominated by President Trump, held that the words “on the basis of sex” in the Civil Rights Act protect employees from discrimination on the basis of sexual orientation and gender identity. How could the conservative legal movement, which spent so much time, money, and energy cultivating good conservative judges, accept that one of their own wrote an opinion enshrining the contemporary LGBT movement into the Civil Rights Act of 1964? Bostock shook the belief of many conservative lawyers and thinkers that originalism was a sufficient check on liberal jurisprudence.
Second, there are legitimate questions of legal principle that originalism may not be able to answer. Were the Founders who wrote the Constitution originalists? Did they limit their interpretation of law to the original public meaning of the words of enacted laws? Or did they accept that the natural law and the classical sources of legal tradition were part of the nation’s inherited body of law? Do lawyers and judges accept principles of natural law, such as the precept to do good and avoid evil, or the basic assumption that one cannot be blamed or punished for conduct over which one had no control? What about legal traditions that fall outside the text, such as the canons of statutory interpretation? Do we use those to interpret statutes? If so, does that go beyond seeking the original public meaning of the law?
It would be a strawman to say that originalism has no answers to these questions and the many others being posed by conservative critics of originalism. But such questions are of great interest to many young lawyers and law students who are eager to go deeper than merely accepting a theory that claims to be morally neutral, especially in a culture where moral neutrality seems a grossly insufficient response to wokism. Conservative legal thinkers want more. Can originalism provide more than positivism, to committing to the dead-letter original meaning of legal text?
Originalism is experiencing an intellectual revival, offering hope that it can indeed rise to the challenges it faces from the right. The Dobbs decision offered a boost, showing that originalists are not mere neutralists by definition, but can have spines; originalist judges can produce good, moral results. But the bigger questions remain: is originalism correct in principle, and is it sound as strategy?
Hadley Arkes and Mere Natural Law
Professor Hadley Arkes’s Mere Natural Law has been amply and capably reviewed since its release. But the simple premise and some of the core insights of the book are worth highlighting. Arkes does not seek to overthrow conservative originalism nor to revolutionize jurisprudence. Rather, he seeks to remind lawyers of something so simple that they have perhaps forgotten it, or never consciously knew it at all: there are “anchoring axioms,” not written in any constitutional provision or statute, that are necessarily true, and we take them into account whenever we interpret law.
The Founders took for granted those anchoring axioms of the Natural Law as the moral ground of the Constitution they were seeking to put in place. But those anchoring truths were so grounded in common sense that, in the trick of an eye, lawyers in our own time had stopped noticing them. I would hold then to an originalism that contains the moral ground of the law as that Founding generation understood it.
Arkes does not claim that natural law ought to replace the original meaning of the Constitution. Rather, interpreters of the Constitution need to remember that natural law principles were at work when the Founders drafted the Constitution, and continue to be at work any time someone interprets legal text.
What are these natural law axioms? Arkes highlights a few, but does not intend his examples to be exhaustive. The axiom Arkes uses most frequently throughout the book is the principle “that we don’t hold people blameworthy or responsible for acts they were powerless to effect.” Arkes makes it clear that this is an axiom of law found nowhere in the words of the written Constitution. Yet, despite its absence from the written law, this axiom is the basis for everything from the insanity defense to the impermissibility of racial discrimination. If a person had no control over his actions, how can we punish him for a crime? If a person has no control over his race, how can race be used against a person in a legal regime?
Arkes places another related axiom before his readers — that a thing cannot both be and not be at the same time and in the same manner. This principle of noncontradiction, part of any sane method of legal interpretation, leads to the necessary conclusion that a statement is either true or false. This includes legal statements. We must accept that or we become pure democratic positivists who hold that the law is whatever the majority says on each issue at any given time.
This debate between principle and pure democratic positivism finds its most powerful historical example in the Lincoln-Douglas debates. When Stephen A. Douglas “insisted that the Constitution was utterly neutral or, we might say, pro-choice on slavery . . . [he] professed not to ‘care’ whether slavery was voted up or down in the territories as long as it was done in a properly democratic way with the vote of a majority.” Lincoln’s response to this argument — that it was necessary to ask “whether the black man is not or is a man” — is a moral and philosophical point, but not an extra-legal one. Is the black man a man? If so, how can he also be “not a man” for certain legal purposes? To hold both that a black man is a human being and that he can be treated as legally less than a human being is to violate the fundamental principle of noncontradiction. While the written U.S. Constitution might not define who is a person or what can be held against a person because of certain characteristics like race, these are indeed questions of law. As Lincoln asked, if the black man is a man, isn’t he entitled to the right to life, liberty, and the pursuit of happiness? Due process of law? If not, why not? Such truths about the human person cannot simply be cast aside as beyond the scope of the law, because these first principles have profound legal consequences.
Arkes takes the issue of popular sovereignty and the truth underlying the constitutional rights of black people, and convincingly analogizes it to the positivist jurisprudence found in the Supreme Court’s Dobbs opinion. Arkes is clear that the majority in Dobbs did a good thing by ending the sham legal notion that there is a right to abortion in the Constitution. But by focusing only on the interpretation of the positive law (what do the words of the Constitution say or not say about abortion?), the court misses the principal legal question: is an unborn child in the womb a person?
The question of the personhood of the unborn child is no mere question of religious “value judgment.” The law gives rights to persons, so the law must have an answer to whether the unborn child is a person. After all, persons cannot be denied life, liberty, or property without due process of law. Yet unborn children in the womb are losing their lives without a shred of due process. The abortion example presents the summary of Arkes’s legal reasoning and his critique of the conservative legal movement: when we lose sight of first principles, which are deeply rooted in the natural law and on which lawyers and judges (necessarily, if often unconsciously) rely, we have lost the foundation on which law is built.
Adrian Vermeule and Common Good Constitutionalism
While Arkes focuses on the natural law underpinnings necessary to understand and properly orient originalism, Adrian Vermeule advocates for a return to the classical legal tradition, which he claims requires more than just reframing:
All attempts to combine originalism with the classical view of law are ultimately incoherent, an attempt to mix oil and water. … Precisely to the extent that American lawyers are genuinely originalist, they should have the courage to discard originalism altogether in favor of the classical law, the foundational matrix for the thinking of the whole founding generation.
Before commenting on whether Vermeule’s opposition to originalism is wholly justified, it is worth understanding what Common Good Constitutionalism does and does not say. It is a mistake to say that Vermeule’s CGC is mostly an argument regarding how judges ought to interpret the law. Originalists often engage with Vermeule as a man on a mission to turn conservative judges into “right-Dworkinians,” into living constitutionalists who will simply impose desired conservative outcomes on the interpretation of law without respect for the meaning of the text. While Vermeule does express affinity for Dworkin and “moral readings of the Constitution,” CGC is most useful not as a tool to understand the interpretive work of judges but as a needed reminder of the overarching purpose of law and government.
Throughout the book, Vermeule repeats Aquinas’s definition of law as “an ordinance of reason for the common good, promulgated by a public authority who has charge of the community.” Much of Vermeule’s most valuable insight is not on the way judges ought to interpret laws, but rather on the ways in which governments should understand and craft law. Law is not “whatever the legislature, speaking for the majority, decides is law.” That is positivism. Rather, law is the use of reason by lawmakers to promote the common good. Remembering the very purpose and foundation of law and government, before even considering questions of interpretation, is the heart of the message. For this reason alone, originalists skeptical of Vermeule should read the book and take it seriously.
While Vermeule does argue that classical law is incompatible with originalism, some of his proposals may not be as unpalatable for the dedicated originalist as they first appear. He claims that the classical legal system supports both judicial deference to the legislature and executive, as well as a real respect for “textualism” properly understood. “How the Constitution should be interpreted and how judges should decide cases are not necessarily the same question,” he writes.
Vermeule goes on: “…In fact, the best interpretation of our constitutional practices…is that judges do and should broadly defer to political authorities, within reasonable boundaries, when legislative and executive officials engage in such specifications” (emphasis added). If law is for the promotion of the common good, it does not follow that judges should ignore statutory or constitutional text and simply do what they think promotes the common good. Rather, the American system involves a written constitution and statutes passed by the legislature, which are presumed to be the enactment of “rational ordinances promulgated by the public authority for the common good.”
As Vermeule explains it: “the classical approach to law is not an opponent or alternative to originalism or textualism. Rather it includes its own properly chastened versions of those ideas.” Vermeule’s problem seems to be less with the concept that judges should read legal texts according to their original meaning, and more with the concept of a purely positivist understanding of law. The central problem is the myopic view of law as nothing but the enacted text, completely divorced from the divine law, the natural law, the common law, and the law of nations.
Originalist Responses
While these are indeed serious challenges to the theory of originalism, the originalism that is being practiced and espoused by judges, academics, and Federalist Society panels throughout the country today no longer looks like the pure positivism that is often the subject of attack. Today’s originalists regularly discuss natural law, extra-textual traditional legal principles, and the common good. In fact, such subjects — the core of arguments like Arkes’s and Vermeule’s — are now at the center of much of conservative legal thinking.
Josh Hammer wrote an excellent law review article in 2021 in direct response to Vermeule’s initial “Common Good Constitutionalism” essay. Hammer titled his response “Common Good Originalism: Our Tradition and Our Path Forward.” Hammer notes a problem: on the right, conservatives since the 1980s have been stuck on two basic forms of originalism. There is a libertarian strain, which sets “normative ideals of individual liberty and Lockean liberalism . . . as the background conceptual framework needed to reach the Constitution’s legitimate original public meaning.” And there is positivism, which shies away from natural law underpinnings, from a moral framework, indeed from “any normative argumentation in constitutional interpretation.”
Hammer concludes that it is wrong to frame the options for legal conservatives in these narrow, ahistorical boxes. He returns to the Preamble of the United States Constitution, which lays out the “enumerated ends of government”: “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” Taken together, these ends suggest a vision of government far closer to “promoting the common good” than to “securing individual liberties” or “ensuring value-neutral procedures.”
Hammer seeks a compromise position, one with a persuasive argument in its favor. He starts with the originalist principle that judges should apply the law according to its original public meaning. In some cases, the meaning of the legal text is so clear that nothing more is required: “Article II, Section 1 unambiguously sets the minimum age for presidential eligibility at thirty-five years old, the Seventh Amendment unambiguously sets the minimum amount in controversy for a civil suit jury trial at twenty dollars, and the Fifteenth Amendment unambiguously forbids any state from denying or in any way abridging the right to vote on the basis of ‘race, color, or previous condition of servitude.’” But what about cases where the relevant legal text is ambiguous or vague? Hammer appeals to the Preamble and argues that, whenever in doubt about the original public meaning of the text, judges’ interpretation should be guided by the common good as classically understood.
Other originalist scholars have likewise taken recent critiques as motivation to improve originalist scholarship. One of the great contemporary originalist scholars, Professor Joel Alicea, has done excellent work grounding originalism in a natural law theory of popular sovereignty. In his 2022 law review article The Moral Authority of Original Meaning, Alicea relies heavily on Aquinas and the classical theory of natural law to defend and legitimize “original public meaning” originalism as consistent with the classical legal tradition. Yet rather than begin by attacking Vermeule, Alicea credits him with addressing a deficiency:
One of the most enduring criticisms of originalism is that it lacks a sufficiently compelling moral justification. Scholars operating within the natural law tradition have been among the foremost critics of originalism’s morality, yet originalists have yet to offer a sufficient defense of originalism from within the natural law tradition that demonstrates that these critics are mistaken. That task has become more urgent in recent years due to Adrian Vermeule’s critique of originalism from within the natural law tradition…
Iron ought to sharpen iron, and critics like Vermeule have certainly sharpened the arguments of originalists like Alicea.
Other great originalist scholars have likewise credited the work of Arkes and Vermeule as having the potential to strengthen rather than splinter the conservative legal movement. Writing in the Claremont Review of Books, Randy Barnett — himself a sometimes libertarian-leaning originalist — acknowledges, “In fairness, Vermeule has located a genuine deficiency in the conservative legal movement that I have criticized for as long as I have been a part of it. For a variety of reasons, constitutional conservatives—for want of a better label—tend to focus almost exclusively on the proper reading of the ‘positive law.’”
In a recent First Things book review on Arkes’ latest book, Marc O. DeGirolami similarly admits the deficiencies of legal positivism, but opines that “Arkes is writing for an earlier time. In the mid-to-late twentieth century, the regime of liberal neutrality seemingly championed by powerful institutional actors was highly susceptible to Arkes’s critique of relativism. But today, this analysis feels dated. The trouble today is not the amorality of relativism. It is moral disagreement.”
What Now?
Several questions will determine where we go from here. First, are the critiques of originalism offered by Arkes, Vermeule, and others correct in principle? Second, if the critiques are correct, can originalism address them and survive? Third, if principle requires originalism to be altered or discarded, what is the politically prudent way to effect such a change without doing serious damage to the unity and effectiveness of the conservative legal movement? This essay cannot conclusively answer these questions, but they must be answered by lawyers, judges, and scholars if the conservative legal movement is to face the present crisis.
Adherents to originalism should first examine whether originalism in its current forms is, well, originalist. Did the Founders construct a system of government where judges were only meant to interpret the Constitution and the written laws according to their original public meaning? Was this done in a vacuum? Were judges supposed to simply read the words of the law, or consider the subjective intent of the legislators? Most importantly, when interpreting a law, were judges supposed to consider sources external to the text, such as classical canons of statutory interpretation, natural law, and centuries of common law precedent?
Originalists are of course correct that the law should be interpreted without appeals to irrelevant subjective judgments or policy considerations. Judges should only interpret the law. But then, the central question being posed (in different ways) by both Arkes and Vermeule is: Aren’t there aspects of “the law” other than the enacted text? And if so, what are they, and how do they inform a theory of the proper interpretation of the law?
On the other side, the firm critics of originalism need to grapple with the question of how flexible originalism actually is. It is easy for a critic to dismantle pure positivism or libertarian originalism. The former assumes a shallow understanding of law as “whatever the lawmakers have enacted” and limits the judge’s role to parsing words and consulting old dictionaries. The latter contains a moral judgment (if in doubt about the original meaning of a law, err on the side of individual freedoms) that is itself extra-textual.
In reality, originalism is adaptable; indeed, it has already adapted. One can accept the originalist premise that written laws ought to be interpreted according to their original public meaning while acknowledging that the natural law and the common law are part of the inherited body of law, and therefore form a key part of that original meaning. Many lawyers and scholars now hold to that exact position.
Arkes claims that a properly understood originalism acknowledges and relies on the basic axioms found in the natural law. Vermeule advocates for a kind of textualist practice conducted within the classical legal tradition, where judges respect the lawmaker by generally interpreting laws according to their original meaning whenever it is reasonable to do so. Is it possible to accept either of these premises and still have “originalism?” Clearly, within originalist circles, the Overton window of acceptable originalist interpretation is widening. Yet some critics insist that originalism is positivism, and that systems of jurisprudence that begin applying principles of natural law cease to be originalist.
To grapple with these questions is not a mere academic exercise. What a non-originalist jurisprudence might look like in practice is a real, pragmatic question. If one accepts that the natural law or the classical understanding of the common good ought properly to be considered when judges interpret law, it is legitimate for conservatives to wonder whether we have a supply of sufficiently educated lawyers and judges who are up to the task. DeGirolami summed up this hesitation in his review of Arkes’ book:
If Arkes’s response to this new reality [that we live in an age of profound moral disagreement] is something like, ‘Exactly, and this is why we need “our” judges to impose moral rules directly through constitutional adjudication,’ then I’m afraid he has missed his guess about just the sort of morality that judges are likely to impose. Even judges whom Arkes might think could be relied on to think soundly about such matters are likely to surprise him unpleasantly—perhaps in part because of how distant we are from the natural law tradition, how much we have forgotten, and how much we never learned at all.
Classical lawyers and judges require a classical education. How many American judges understand the Institutes of Justinian, the Institutes of Gaius, Aquinas’s Treatise on Law, or even the more recent works of men like William Blackstone and James Wilson? Frankly, there needs to be a fundamental restoration of elite education if such a project hopes to succeed in practice.
The debate between originalism and its critics from the right needs to be dealt with prudently because the political stakes are quite high. The work of the Federalist Society may be the defining triumph of the conservative legal movement over the last fifty years. Decades ago, intelligent conservatives identified a problem: the legal academy was dominated by progressive legal thought. The effects included increasingly progressive legal scholarship, as well as the formation of generations of progressive lawyers (and therefore judges). Identifying the problem, the nascent Federalist Society constructed a long-term plan that would bear fruit in the years and decades to come: create student chapters, encourage conservative legal formation and debate, and form a national network of lawyers on the right. Over forty years later, the organization can claim tens of thousands of lawyer-members, hundreds of federal judges, and several justices of the U.S. Supreme Court.
As conversations about natural law and the classical legal tradition attract the attention of an increasing number of young legal thinkers, people on all sides of the debate should be encouraged to proceed prudently. Clearly the hard positivism that was popular in originalist circles in the recent past desperately needs to be reformed by a return to the classical legal tradition, to the wider tradition of law beyond enacted legal texts. The more natural law scholars and CGC adherents dialogue with and challenge originalists, the more conservative jurisprudence stands to benefit. But in the process, we should take care not to splinter what has been, on balance, a very successful movement. The Federalist Society has been largely responsible for the vetting and recommending of hundreds of federal judges who play a crucial role in holding some of the worst excesses of American progressivism at bay. A triumph of natural law theory or CGC over originalism among the next generation of lawyers would be a hollow victory if the result were the destruction of the powerful infrastructure of the wider conservative legal movement.
Originalism has stood largely unchallenged as the legal theory of American conservatism for decades. Prominent intellectuals from Arkes to Vermeule (and many others besides) are asking good questions and bringing legitimate challenges to that hegemony. Conservative lawyers and intellectuals should engage these ideas openly. The natural law and the classical legal tradition have clearly had a place in the American legal system from the Founding, and so they should continue to be taken seriously by conservative lawyers and judges today.
Is this wider, fuller view of what the law is compatible with originalism? Can originalism adapt, expand, understand itself anew in a way that satisfies its critics and holds the conservative legal movement together? These principles are not mere academic debates about angels on the heads of pins. The threats before us are clear and immediate. Whether we can defend our Constitution and the American legal tradition through the approaching crisis could determine not just whether we succeed, but whether we survive.
Frank DeVito is an attorney serving as Counsel at the Napa Legal Institute. His work has previously been published in several publications, including The American Conservative, The Federalist, City Journal, and First Things. He lives in eastern Pennsylvania with his wife and children.
The views expressed in this article are those of the author and not necessarily his employer.
