Joel Alicea (00:00:02):
Okay, let’s get started. I’m Joel Alicea, I’m a non-resident fellow here at the American Enterprise Institute. I’m also an assistant professor of law at the Catholic University of America’s Columbus School of Law and the co-director of the project on constitutional originalism and the Catholic Intellectual tradition, which is one of the co-sponsors of this event along with AEI. You all know the important work that AEI already does so let me just say a few words about what the project on constitutional originalism and the Catholic intellectual tradition is, what it does. Since we’re really starting in earnest this academic year at the Catholic University of America. This project is dedicated to exploring the relationship between the Catholic intellectual tradition and American constitutionalism more broadly. And we do that through things like speakers events like this one, which is our first speakers event, fellowships for young lawyers, students at the Catholic University, and of course things like courses that we will be sponsoring at CUA. You can learn more by visiting us at cit.catholic.edu.
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And this is really an appropriate first event for us at CIT at the project on originalism in the Catholic intellectual tradition. And an appropriate event to be hosted here at AEI given its potentially significant implications for law and public policy. The topic we’re taking up today is whether originalism and the natural law tradition are compatible with each other. And that’s a topic that has gained a lot more attention in recent years, it’s been the subject of debate among legal scholars. It relates to a debate that has gone on for a long time, for over 50 years in debates about originalism, about whether originalism has a sufficiently compelling moral justification. Natural law scholars for a long time have argued that originalism lacks a sufficiently compelling moral justification, in part because it can sometimes lead to outcomes and cases that seem at odds with what the natural law might require as a matter of just first principles if they’re being directly applied to constitutional controversies.
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That kind of critique of originalism has been given renewed prominence of late because of a book by Harvard law, Professor Adrian Vermeule called Common Good Constitutionalism, where Professor Vermeule argues that originalism and the natural law tradition are incompatible with each other. I should hear just briefly note that we did invite Professor Vermeule to have a discussion about his book here at AEI this fall, we invite him a few months ago to do that and unfortunately that just didn’t come together. But that invitation remains open, we would always love to host a discussion about his book with Professor Vermeule here at AEI whenever he’s able to take up that invitation. But here today, we’re going to have a discussion that’s broader than just a discussion about Professor Vermeule’s book. We’re going to have, have a discussion more broadly about the compatibility of the natural law tradition and originalism and allow our panelists to go into more depth about what we mean by originalism, what it means to say the natural law tradition. So don’t worry, we will get to defining terms soon enough.
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But our panelists here are all outstanding scholars who specialize in this intersection between constitutional theory and natural law theory. And so they will help us think through this question about the compatibility of those two things. I will briefly introduce each of them when I call on them, and after each of them has had a chance to speak, I’ll facilitate a conversation with them. Then we will turn to your questions around 6:30 PM. In addition to taking questions from our in person audience, I will also be taking questions from our virtual audience watching at home. Those watching on our live stream may submit questions in two ways, either by emailing Sophie Rizzieri at sophie.rizzieri@aei.org, which I think should be visible on your screen. Or by submitting questions on Twitter using the hashtag AEI Common Good.
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For those of you here in the in-person audience, just raise your hand when the time comes for questions and if I call on you, wait for the microphone to come to you before asking your question. So with that, let’s dive right in and our first panelist up will be Sherif Girgis. Sherif Girgis is an associate professor of law at Notre Dame Law School. Prior to joining Notre Dame law, he practiced law at Jones Day in Washington DC where he focused on appellate and complex civil litigation. Professor Girgis clerked for Justice Samuel Alito on the US Supreme Court and for Judge Thomas Griffith on the US Court of Appeals for the DC Circuit. Now, completing his PhD in philosophy at Princeton, Professor Girgis earned his JD at Yale Law School, a BPhil in philosophy from the University of Oxford as a Rhode Scholar and his undergraduate degree from Princeton University. His scholarship focuses on the intersection of law and philosophy, and his work has appeared or is forthcoming in such places as the Virginia Law Review, the University of Pennsylvania Law Review and the American Journal of Jurisprudence. So Professor Girgis.
Sherif Girgis (00:05:09):
Thank you. I’m really grateful to be here, really grateful to all of you and to AEI and to the center and especially grateful to the co-panelists who I admire a ton, who’ve written a lot more about these issues than I have and who I’m looking forward to learning from. I’m going to make a few general points by way of foundation about what originalism is, what natural law is or is supposed to be according to this intellectual tradition. And then why in general it’s possible for a system to be originalist without violating the natural law so understood. And then my co-panelists are going to go into more detail about our system in particular and about recent developments in the theories of interpretation and of natural law theory. What is originalism? For my purposes and my co-panelists might tweak it a little bit. I will just mean by that the view that embraces three points.
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One, that to figure out what contribution to our constitutional law was made by a particular constitutional provision. When you’re figuring that out, the original public meaning of that provision according to the conventions for interpreting legal texts at the time of enactment is decisive. So if that original public meaning is clear, it controls until the text has been a amended. The second point is that you can figure out what that original public meaning is without doing fresh moral arguments every time. And the third is a moral claim, which is that judges, and I’ll focus on judges though obviously originalism has something to say more generally. Judges have an obligation to stick to that original meaning subject to the other legally recognized limits on the judicial role, including some respect for precedent, details are obviously a matter of controversy. Some respect for the party presentation principle, the idea that judges are only obligated to consider the arguments that the parties have made and so on.
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That’s what I mean by originalism and by natural law, at one pass we mean by natural law, just the set of true moral principles, whatever they are that are knowable by reason alone. The set of principles about right and wrong, that reason can tell us. But in these debates, most people are talking about a particular intellectual tradition that has a set of answers about what those timeless principles are. And this is the natural law tradition that is typically traced either from Plato or Aristotle or the stoics, certainly through Aquinas and then into contemporary thinkers in the 20th century and in our own day. Aquinas is the one person I think everybody in these debates would definitely include on the list, so I will refer to him a few times. What’s distinctive of this intellectual tradition about what morality requires? One point is that it’s the view that morality is about the human good. It’s about the set of principles of reason that direct us to protect and promote the human good. And the human good on this set of views is variegated.
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There are lots of different fundamental human goods, life, health, aesthetic experience, knowledge, friendship, religion and so on. And there are lots of details to hash out, but the most important thread through those that’s relevant to this debate is that the basic human goods and the moral imperative to protect and promote them requires us to cooperate in community. So some of the goods like friendship, I can’t realize at all on my own, but all of the goods I cannot realize very deeply at all unless I get together with a bunch of other people and we are coordinated enough to take advantage of specialization and division of labor and the efficiencies that all of that produces so that I am not just barely subsisting, but that I’ve got a steady supply food and similarly with education and aesthetic experience, the arts and everything else. So those are the common foundations that are required to get this discussion going.
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I’m going to make four, what I hope are quick points about natural law theory and I think those four points taken together will make it clear how it could be that a system is originalist consistent with the natural law. The first point is the importance of authority in natural law. So natural law theory says you have a moral obligation to pursue and protect these various fundamental goods, that those goods require cooperation, and cooperation across society requires coordination, being on the same page about a lot of different questions that aren’t automatically resolved for us. If we’re really going to take advantage of specialization and division of labor, we’ve got to have transportation of goods and services which requires driving on the same side of the road, but the right side of the road on which to drive doesn’t fall out of the heavens, so we need coordination. And it turns out there are only three ways to get coordination, and two of them are non-starters.
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One way is consensus, spontaneous consensus. Obviously we won’t get that, won’t get unanimity on anything once society is of a reasonable size. The second is might makes right, we beat each other up and whoever wins gets to set the rule and that’s obviously contrary to the natural law. The only alternative is authority. Which means that some people are recognized as legitimate sources of the rule that will get us all on the same page. And by definition, authority means that some decide and others defer. That some people get to figure out their conception of what the common good requires or when the common good doesn’t require a single thing, they get to decide which of the several options that the common good makes available to us, we’re going to go with the right or the left side of the road. And then others defer, meaning that others don’t make up their own moral reasoning from scratch on that point, but go with the reasoning that was authoritatively decided.
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If the natural law requires protecting the good and the good requires coordination, then the natural moral law, while it requires some people in the legal system to consult the common good, actually forbids others to do that, at least to do that in a way such that it’s from scratch on any given point or else you’ll lose the benefits of coordination and therefore of living in community. So it’s at least possible and in any almost anybody’s view, it is actually the case that some people in the system don’t have the authority to do all the moral math from scratch. And all the participants in this debate on the common good and the originalist side would grant that. But just to give you a toy example, the bailiff is tasked with carrying out an order.
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If the person has been… I’ve never been in a state court, but my impression from TV is that, if somebody’s been convicted, the bailiff’s job is to give effect to that legal order by escorting the person to jail without on the way asking him or herself, “Well, was the statute of conviction substantively just? Was the evidentiary bar really cleared and so on?” And if he or she did, we really would start to lose all the benefits of coordination that the criminal justice system as a whole is supposed to achieve. Everybody agrees with that on the bailiff, everybody agrees that some people like lawmakers or ratifiers of constitutional provisions get to do it from scratch. The question is, where do federal judges fall in our particular system? The second point is that the strong moral presumption in favor of deferring to the authoritative deciders is not easily overcome.
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You might have thought it is because deference after all only serves one good, which is coordination. But there are other elements of the common good. There might be some rule of law value to sticking by the plain meaning or the plain import of a previous decision, but after all, there could be a competing good, the substantive benefit of going the other way in the case at hand. And why couldn’t it be that those substantive goods outweigh the instrumental goods of coordination on any given occasion, in which case the presumption to defer is a weak one. I think this kind of argument misses an element of the picture for the natural law theorists. So take another toy example, if we have traffic laws and stop sign rules for the obvious reasons of the concrete goods of safety and life and health. But on some occasions you can be pretty certain that you’ll fly through that stop sign and no one will get hurt. You’ll look around, you can be sure that nobody’s around, you’re not going to hit anybody either.
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Still, there is some moral reason to stop, which is fairness. Because you wouldn’t want everybody else to make their own calculation about whether safety requires stopping. If everybody did that, we really would lose whatever concrete benefits stop signs serve. So by the same token, you shouldn’t make yourself an exception. So there’s an element of fairness that combines with the concrete benefits of coordination, which together make the presumption in favor of deferring to the authoritative rule quite strong. The third consideration from the natural law tradition that I think is relevant here is one that where I’m really just going to crib and summarize something that Joelle has really nicely spelled out in a recent article, a forthcoming article in the Notre Dame Law Review, which is the importance of jurisdiction.
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So for the natural law tradition, no adult has natural authority over any other adult. Even if I genuinely know what’s good for you and you don’t, I know that it would be better for you to have a career as a scientist than a philosopher. But I’m just another ordinary citizen, I have no authority to force you into that career. And if I did by whatever mechanism, I’d be acting unjustly even if it really did went down to your good over the alternative career. So there’s this idea that no one has natural authority to coerce another. Which means that any legitimate authority to coerce has to be artificial, it has to be socially specified. It has to be determined by a set of social understandings that serve the common good.
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And if you do something that oversteps the socially recognized limits on your authority to coerce others, then you’re doing something unjust even if the outcome is really good. So if it turns out that the social limits on judges in our system are as originalists think they are, then even if the substantive outcome is really, really attractive, that would go against originalism pursuing it, that for the judge is unjust. Unless of course the social limits on the judges themselves are unjust, that those somehow undermine the common good. For that you’d need to say there’s something special about judges that makes it that they have to be able to override the original public meaning in some cases. That we can’t leave it to the process overall, to the ratifiers of the lawmakers to fix the original meaning by the recognized means. And what kind of argument could that be?
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The main argument that I see is the idea that judges are in a different position to consider the common good. So lawmakers have to legislate in the abstract and for the general case without seeing the particular applications. Judges are in a position to see how the case applies to a particular party. And so they might be in a position to see that there would be a really bad outcome if the law were applied by its terms. So we need somebody who’s in a position to match the general law to the particular case who has the authority to decide whether to do it or not. But I don’t think that is an argument for the judge to be able to do that if there are other actors in our legal system who already have that authority. And Professor Vermeule actually in a talk for The Thomistic Institute discussed this kind of counter-argument.
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He pointed out that even if the judge at the moment of conviction doesn’t have that authority, the prosecutor has the authority, the discretion not to bring the prosecution. Agencies have the authority not to enforce a statute, executives have the authority to pardon and so on. Aquinas himself and a famous discussion talks about a judge who might know on the basis of privately acquired evidence that a criminal defendant is actually innocent, but the record evidence makes him seem guilty. And Aquinas says the judge does not have the authority to overstep those social limits on his role by trying to clear the guy if the record renders him guilty. And that brings me to my final and briefest point about the natural law and how its features might make it easy to see how originalism could be permissible. Which is that it gives a lot of emphasis to the doctrine of double effect.
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So that there’s a wide range of cases where if what you are doing is in itself morally legitimate and has a strong enough justification, then you can accept a lot of bad side effects. And Aquinas himself in his discussion of this case involving the judge seems to think of it in those terms. The judge is serving the rule of law and justice and preventing the injustice of overstepping the socially specified limits on his authority. There is a bad consequence, which is that somebody who’s innocent will be punished, but that, that is a side effect that the judge is not on the hook for in such a way that it could override the natural law and justice based limits on his authority. Thanks.
Joel Alicea (00:18:48):
Thank you Professor Girgis. And we will now go to Professor Kevin Walsh, who is the Knights of Columbus professor of law in the Catholic tradition at the Catholic University of America’s Columbus School of Law, and the co-director of the project on Constitutional Originalism and the Catholic intellectual tradition along with me. Prior to joining Catholic law, Professor Walsh taught at the University of Richmond School of Law for 13 years. He previously practiced law at Hunton and Williams. Professor Walsh clerked for Justice Antonin Scalia on the Supreme Court and for Judge Paul Niemeyer on the US Court of Appeals for the fourth circuit.
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He earned his law degree from Harvard Law School, a master’s in theology I believe from Notre Dame and his undergraduate degree from Dartmouth College. Professor Walsh’s Scholarship focuses on doctrines that define the scope of federal judicial power and has appeared in the Stanford Law Review, New York University Law Review and the Notre Dame Law Review among other avenues. And he is the author with Notre Dame law Professor Jeffrey Pojanowski of an article providing a natural law defense of originalism published in the Georgetown Law Journal titled Enduring Originalism, which I would highly recommend. Professor Walsh.
Kevin Walsh (00:19:56):
Well thank you very much and I’m very much looking forward to the discussion. For my opening remarks though, I will stick to my script and ensure that we cover the point that I would like to, and I’m going to start somewhere different, which is with justice. So the title of our panel this evening is natural law and original meaning more precise title from my perspective might be something like Thomistic juridical realism four cause that’s F-O-U-R cause constitutionalism and original law originalism. So all in about 11 minutes. So start with some working understandings of key concepts. So here we have justice, law and jurisdiction. And for all of these in part for the reasons mentioned by Sherif, I’m going to be working with the account provided by St. Thomas Aquinas. Someone who integrated Greek, Roman and biblical understandings of these concepts. And so that’s Thomistic aspect.So the primary concept here is justice. And one of the claims is justice is real, that’s why we talk about juridical realism. So what is justice? For St. Thomas Aquinas Justice is a virtue of the will. It’s the constant and perpetual will to render to each is due. So an important feature of this understanding is that each is due, his right or his, yes, is the object of an act of justice. So justice is a virtue of the will, the act of justice is the rendering of the just thing. That just thing the due, is the object there. So that’s the act of justice is rendering to another the just thing that is owed. So what is that? How do we identify the just thing that is owed? Justice itself does not do that. Justice is in second place in this account.
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Ordering comes first. There’s always a prior order. So justice is the will to give each his due, but justice itself doesn’t tell you what is due. It presupposes some prior ordering of what is due, what each is entitled to. And this is where law comes into the picture. And for a Quinastas, there’s many layers of law. There’s the eternal law, there’s the natural law, which is the participation of the rational creature in the eternal law. There’s divine law with both old law and new law. There’s human positive law. And so law and all of these levels is supplying some type of ordering. So law, Thomistic understanding of law, this is the classical understanding of law more generally has four features and hence the fore cause constitutionalism. These are drawn from Aristotle’s four causes and St. Thomas maps those onto law in his treatise on law.
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And we have an ordinance of reason for the common good, made by one with competent authority and promulgated. All four features are essential for identifying something as law. Each contributes something distinctive to the law nest of any given law. So just a preview is just a lot of conceptual mapping, where we’re going with this is that a powerful way of evaluating the adequacy of an account of law is by reference to these four causes or essential elements. So to pick a crude dichotomy in the area of statutory interpretation, we might polarize what really should be a continuum and sharply distinguish textualism on one end from purposivism on the other end. And in that polarity, the textualist on these four causes risks over-emphasizing authority and promulgation. The purpose of this risks over-emphasizing the elements of ordinance of reason in common good and missing the authority and promulgation.
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So four cause legal analysis says attend to all four. So this is just why we should attend to all of them, back to the conceptual mapping notes. So we have justice, we move to law in order to get the ordering for what is due. And then the third concept is jurisdiction. So this is a very important concept and that is the public authority to say what the law is for the community. And this comes in two different kinds, or we should at least distinguish two different kinds. That is the public authority to make law for a community generally and the public authority to interpret and apply law in some particular case as Sherif discussed. So in the judicial context, there’s much more in Aquinas, even just the Summa Theologiae about law than in the treatise on law. The treatise on justice is the longest part of the Summa. And in that part, St Thomas links the public authority, the jurisdictional authority with the power to enter binding judgment.
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So now we’ve got those in place let’s apply it to American constitutionalism. And that’s basically what my friend and fellow law professor Jeff Pojanowski and I did in our paper five years ago, or the one that was mentioned Enduring Originalism. So the central section of that paper is called Classical Natural Law Foundations of Positive Originalism. And don’t worry, I’m not going to do the whole paper. That section though, that central section, classical natural law foundations of positive originalism has three parts. So first is just classical natural law jurisprudence in which we address the four causes of law and interpretive implications for fundamental law like constitutions. The second is classical natural law foundations of the Constitution of the United States. So you need a jurisprudential account, but you need a historical account of what American constitutional law is. So there we began with the declaration, we continued through the articles of Confederation and Perpetual Union, that’s in the title two.
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The declaration, the articles, the Constitution of the United States, ratified by we the people of the United States, the commentaries of Publius and Brutus on interpretation, precedent and liquidation. And then onto that mandamus case from 1803 Marbury versus Madison and several early constitutional commentaries, including people who had different views of the nature of the union, which was of course the greatest divide in the early republic on the very nature of the union. And then the third section, we focused more on the present, which we just characterized as eclecticism. That’s living in a world of constitutional eclecticism with constitutional laws, largely customary law of a certain sort. So that’s it for that paper. So go check it out. But to bring it home more concretely here, is a spark note summary that perhaps might spark some interest. And for this we can use the preamble.
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Sometimes I’ll sing it, not going to sing tonight, but you know I’d lead the people. So ordinance of reason, the Constitution holds itself out as an ordinance of reason. It says, the people of the United States do ordain and establish this constitution, so listen for those verbs, ordain and establish. That is to order and to set down firmly and authoritatively for the future. This is an ordinance of reason, not sheer volition or just will because the intent accompanying this act of ordination and establishment is to bring about intelligible goods by means of the constitution as a legal instrument. So that’s ordinance of reason for the common good. All of the end specified in the preamble are true common goods. More perfect union, justice, domestic tranquility, common defense, the general welfare and the blessings of liberty, which I believe are best understood as political liberty to be self governing. That’s for the common good made by one with authority or care for the community.
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Well, we the people of the United States as a collective corporate unit is the subject. They’re the subject that does the ordaining and establishing. That unitary, we the people ordains, so they’re the ones with the care for the community here, for the union, the preexisting union, the one that was mentioned in the title of the articles even. So now, promulgated, the written constitution is the ratified constitution. It is the legal instrument that holds itself out as the supreme law of the land. So that’s our four cause mapping onto the preamble. Let me end with an account of original law originalism. And I would just give three key features of this. So what does a classical natural law, once you have those jurisprudential foundation, what does that mean for a positive law legal instrument like the Constitution of the United States? So at the operational level, it actually bears many similarities to the approach advocated by jurisprudential positivists like Professor Steven Sachs and William Mode.
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Unlike ours the grounding is different and in some ways our approach would be similar to Lee’s approach as well. But you look and you say, our constitutional law today is the original law of the constitution together with any lawful changes since. So this is an account of the lawfulness of constitutional law now as grounded in continuity with the constitution over time. So the three key features. One is the significance of the origin of the Constitution in a collective act, not of a unitary act really of ordination by we the people, so the nature of the people matters. The origin of a new system. Second, is the recognition of lawful change to that system that was ordained and established under that instrument. And these changes can take the form not only of amendments, but also of authorized developments of doctrine. We didn’t have any pictures in our Georgetown article, but we did have a table or a figure. Figure one, figure one was our taxonomy of law, of constitutional law. And there we in addressed unauthorized developments and authorized developments and then departures from the constitution.
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So change. And then the third key feature is continuity. Origin change in continuity under the same legal instrument over time. So that’s all very formal and general and perhaps we can talk about cases or other particular things, but that’s our approach and that should suffice for opening.
Joel Alicea (00:31:27):
Thank you Professor Walsh. We’ll now go to Professor Lee Strang. So Professor Strang is the John W. Stepler professor of Law and Values at the University of Toledo College of Law. Professor Strang clerked for Judge Alice Batchelder on the US Court of Appeals for the sixth Circuit. And he practiced law at Jenner & Block in Chicago where he practiced in general and appellate litigation. Here earned his law degree from the University of Iowa and LLM from Harvard Law School and his undergraduate degree from Lauras College. His scholarship focuses on constitutional law and interpretation, property law and religion in the First Amendment. And has been published in such places as the Notre Dame Law Review, Fordham Law Review and Constitutional Commentary. His most recent book, Originalism’s Promise and Natural Law Count of the American Constitution provides what I think it’s fair to say remains the most comprehensive justification for originalism from within the natural law tradition. So Professor Strang.
Lee Strang (00:32:21):
Yeah, thank you so much. Thank you for the invitation tonight. It’s great to come to an event sponsored by AEI and CUA. I do a lot of speaking and debating and writing about originalism and over the last couple of years, one of the things that comes up now regularly is originalism and natural law, so this event’s very timely. And in my brief initial remarks, what I want to do is I want to provide what I think is a brief intellectual genealogy of how it came to be that we’re sitting on a panel this evening talking about originalism and natural law. Because, this panel I think is extraordinary in a lot of ways as I’m going to try to describe and for two basic reasons. First, that natural law in the context of constitutional interpretation is a topic of scholarly interest, and I’m going to describe why I think that that is extraordinary.And second, that scholars are advocating for a relationship that in fact there isn’t maybe a necessary relationship in our context between originalism and natural law. So my key move this evening is to provide a genealogy of the relationship between natural law and originalism. Fair warning, this is a very high level of generality because of my initial remarks are short. In brief, I’m going to argue that there are two key factors that contributed to the creation of this panel. One is external to originalism and one is internal. The first factor was an intervention in Anglo-American jurisprudence that began in 1980 with John Finnis’ Natural Law and Natural Rights in stepping back and simplifying a very complex and contested story, natural law jurisprudence to the extent that it existed in their early republic faded at least explicitly, there’s debates about it. From a role in constitutional interpretation by the mid 20th century.
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So that by that time period it became exotic, very unusual, and in fact, a point of a program that one could pejoratively describe somebody else who used natural law. And my favorite, I actually keep this opinion in my casebook, was Justice Black’s concurrence in Griswell versus Connecticut criticizing Justice Goldberg’s concurrence. Justice Black said, “I cannot rely on any mysterious and uncertain natural law concept.” This view of natural law is fundamentally incompatible with constitutional interpretation, was the product of a lot of causes, one of which was the received wisdom from mid 20th century Anglo-American jurisprudence that a natural law approach to law authorized and required interpreters to use their first order normative preferences, what they think justice requires in the case to evaluate the laws that they’re interpreting. And since natural law was wrong from this perspective of the mid 20th century, it was a corollary that judges should not employ natural law.
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Now of course they were important to Senators Lon Fuller and Ronald Dworkin to different degrees, but whatever the causes, when earlier originalists arrived on the scene in the early 1970s, they used and followed this convention and argued that it was illegitimate for Judges Warren Court, Burger Court to employ what they perceived as natural law in constitutional interpretation. You see this in Robert Bork’s seminal article in 1971. You see this in Justice Scalia’s comments when he was a judge and then later as a justice. The consequences of the intervention of John Finnis’ Natural Law and Natural Rights in 1980 are there are two of them that are relevant to the story that I’m telling this evening. First Finnis’ description of natural law in emphasize the independence of positive law for normative propositions. So that positive law had its own integrity. Finnis identified and amplified as we’ve heard tonight, Aquinas’s own treatment of positive law.
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And in doing so, tethered his claims to that natural law tradition, central figure. Second and relatedly Finnis tied a political community’s positive law to that community’s common good and thereby to the individual flourishing of that community’s members. And to do this, and we’ve heard accounts of this already this evening, Finnis developed his law as coordination account of positive law. On Finnis’ account, again, following Aquinas positive law provided the means of determining how a community’s members will live together in relative peace. And this capacity for coordination in turn provided reasons for the members of that community to follow the positive law and not their own first order ethical judgements. These two moves put together, secured the insights of legal positivism while also providing an explanation of laws normativity, laws point. Something with which legal positivists have had and continue to struggle.
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One way I think to see the magnitude of Finnis’ achievement is to compare it to a prior movement in Anglo-American jurisprudence. In the beginning of the late 19th century, so around 1890, there was a worldwide revival and the study of Aquinas’s writings along with that of later scholastics. This movement went by a couple of names, Neo-Thomism, Neo-scholasticism, but however we call it, it was largely, though not exclusively a Catholic phenomenon. In the United States in the 1930s, 40s and 50s, there were a large number, again, mostly Catholic legal scholars who attempted to reform Catholic legal education, but also and more broadly, the American legal system. In both of these efforts largely failed. And my own perspective, for what it’s worth, my judgment that the efforts to explain and justify the American legal system based on Neo-Thomism or Neo-scholasticism were spotty at best, there were a couple of scholars who I think did an adequate job. There were a lot of scholars who honestly just did a poor job and in the Catholic legal education department will have to let the other scholars comment on that whether they’re successful or not.
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And indeed, by the mid 20th century, 1950s or so, Neo-Thomism had become extinct, not just in the broader Anglo-American world, but also in the world of Catholic legal thought. So one of Finnis’ achievements is his articulation of the natural law tradition has had a robust impact on legal philosophy in around the world. The second factor that I think contributed to this panel tonight is internal to originalism, and it’s the development of originalist theory beginning especially around the year 2000. So of course, originalism in its modern form, the argument I’m making came on the scene in the early 1970s and there’s a lot of things that have gone on, but I think it’s really since the year 2000 that there’s just been an incredible intellectual firm that has allowed originalism to get to the point where we can see the claims that we’re having today.
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So stepping back, modern versions of originalism were first articulated in the 1970s. It were explicit explicitly in opposition to the perceived illegitimate use of natural law by the Supreme Court, and expressly relied on the then dominant legal positivist framework in the American Legal Academy. The theoretical turn showed regionalisms porosity to natural law in two main ways. First, regionalisms development as a theory beginning around the 2000s included three key developments of which included the possibility of employing natural law. And you can think of these developments as internal to how an originalist judge or justice or interpreter would work on their day in and day out basis. The first was the concept of constitutional construction. The idea of constitutional construction was developed by professors Whittington, Barnett and Solum in their early 2000s. And it includes situations where the constitution’s original meaning is under determined, where it doesn’t give an answer to a legal question.
(00:39:19):
In this so-called construction zone, at least some scholars have argued, natural law could be utilized by the interpreters to construct constitutional meaning. The second development was a theory of precedent. Originalists approach to precedent, especially non-originalist precedent began to develop in the early 2000s. It remains a developing area, I think there are a lot of areas of opportunity for additional scholarship in this area, but I think there’s a dominant view currently, which is that originalism has a place for [inaudible 00:39:48]. What that place is, how strong the presidential weight is, lots of debates, those are reasonable debates. But it includes for most scholars, at least some non originalist precedent. And one approach to non-originalist precedent would be to utilize natural law as one factor to evaluate the continued viability of non-originals precedent. The third development was the incorporation of non-positive normative standards in constitutional interpretation.
(00:40:15):
Keith Whittington and others around the year 2000 showed that the constitution’s original meaning may, so as a theoretical matter and in fact as a practical matter, employ ethical standards. However, and contrary to claims by scholars like Ronald Durkin, whether and how originalism did so wasn’t a first order normative judgment by the interpreter, it was the original meaning itself deciding whether to incorporate an ethical standard. I think the best example of this is John Stanford’s scholarship on the original meaning of the cruel and unusual punishment clause. So Stanford has shown that the original meaning of cruel was the ethical standard of disproportionate to the crime. And so it’s the original meaning based on just the historical fact of that original meaning that’s identifying and utilizing a normative standard. Let me sound a note of caution here, I’ve argued that three recent developments of originalist theory allowed for limited reconciliation of originalism and natural law, but they don’t require it, because scholars have made in each of these three contexts reasonable arguments that those developments don’t require resort to natural law norms.
(00:41:16):
So for example, there was a paper by professors Barnett and Bernick talking about constitutional construction maybe about five years ago now, where they argue that construction is tied to the constitution’s text and original meaning and a faithful implementation of what they call, the text’s original function and the idea being not the judges or interpreters first order normative judgements. Furthermore, original’s focal case remains the authority of the original meaning. And in the typical case, there is determinate original meaning, so that original meaning governs the case and there’s not an opportunity in one of these three areas for resort to natural law norms. This leads me to the second development in originalist theory that made it compatible with natural law. And that’s the articulation of a variety of normative justifications for originalism. You could think of these developments as being in some way external to originalisms operation because they don’t deal with how an interpreter would do originalism on a day in and day out basis.
(00:42:13):
There’s a debate over whether such normative justifications are necessary or even conceptually coherent and some prominent articulations of originalism do not expressly include normative justifications. I’m thinking here of as Kevin had referenced, bought in Sachs original law, originalism or Chris Green’s truth telling oath justification for originalism. But the mainstream of original scholarship, again beginning in the late 1990s with Keith Whittington’s book, Constitutional Interpretatio, has offered a variety of normative justifications, popular sovereignty, natural rights, good consequences, and nodding to Kevin and his co-author, Jeff Pojanowski in 2016 and my own 2019 book, Natural Law Justifications for Originalism. And these natural law justifications follow explicitly John Finnis’ work. And now there are many others including our esteem moderator working in the same area. So how does this brief genealogy help us understand why this evening’s panels extraordinary? There are two reasons.
(00:43:10):
First, it took a compelling restatement of the natural art tradition and Anglo-American jurisprudence to make it clear. So I think it was always the case, but now it’s clear that of the tradition’s compatibility with originalism’s commitment to the positive meaning of the American constitution. And second, it took a number of theoretical developments within originalism to identify the ways in which originalism was compatible and at least on some accounts justified by the natural law tradition. Just to be clear, my claim is not that there are no other causal mechanisms that have contributed to the perceived compatibility of originalism and natural law and today’s panel, there clearly are. For example, the recovery of the natural law tradition among a number of different groups of Americans. I focused on these mechanisms because I think they help in my mind explain why originalism and natural law are compatible. And just to be clear, my answer is, yes, in the way that I’ve described.
(00:44:03):
But I think originalism and natural law are more than just compatible. I think that the natural law account actually provides an elegant account of the American constitutional tradition. And so just thinking of the origin, which Kevin had talked a little bit about our current constitution, when I read and look back at the account of the framing ratification of our current constitution, what I see is a reasoned attempt to coordinate Americans to better secure the common good. That’s a law is coordination perspective on the constitution’s original meaning, and that the original meaning is the means to communicate the reasons that Americans as officers or as individuals have to follow the American positive law. And this laws coordination account I think has another way in which it’s an elegant account. So when you look at the constitution, it doesn’t have detailed accounts about substantive ethical commitments to justice, instead, it has a lot about who does what. So it’s a very mundane, practical document about how government should operate and that fits the laws coordination account as well. So thank you very much. I’m looking forward to our questions.
Joel Alicea (00:45:03):
Thank you Professor Strang. I want to start with Professor Girgis and just try to get a sense here about what is actually at stake in this debate between those who think that originalism is compatible with the natural law tradition and those who think it isn’t? As Professor Walsh said, you could think about this debate in some ways as an over-emphasis, or not over emphasis, but a focus on some parts of the definition of law from Aquinas versus others that the dead originalists tend to focus on promulgation and authority and the common good constitutionalist naturalists critics of originalism on ordinance of reason for the common good. That’s one way of potentially thinking about the debate. But those would both be just parts of the same definition of law. So I wonder what both as a practical matter concretely in cases, but also just in terms of moral principle, what is really at stake in this debate about whether originalism is compatible with the natural law tradition?
Sherif Girgis (00:46:07):
I don’t know. I don’t know if that disqualifies me for this panel, but I can tell you a few thoughts. So one, is sometimes it seems like there’s a little at stake at a theoretical level because there are eruptions of expressions of surprising agreement. So a lot of common good constitutionalists and a lot of self-identified originalists will agree that there’s at least a very strong presumptive obligation to follow the text or the communicative content of the text or something like that where it’s clear that there are very good natural moral law reasons to not have every actor in the system consult his or her own understanding of the natural law, but rather to defer to those who have the socially recognized authority to do that. And that where the original meaning runs out, you’ve got to rely on something else. And there seems to be some convergence on the idea that some kinds of policy or ethical considerations can figure in.
(00:46:59):
And finally that where are positive sources expressly incorporate moral criteria like maybe the eighth amendment, then obviously people have to do moral reasoning there. When there are differences, my guess is that they are the following. One, is there’s a temperamental difference about how worried people are that weakening the presumption in favor of deference will have lead down a slippery slope that totally unravels the goods of coordination. And coming to a constitutionalists are a little less worried about that and more conventional originalists are more worried. Another is whether there are any cases in which the original public meeting is determinant, does have a clear import for the case at hand, but the substantive outcome is so unjust that the people should override it.
(00:47:44):
But I think the in practice, and this is just going to the stakes question, I think the likeliest answer is that the more that… There’s a division between people who are very focused on what the original public meaning is as a historical and linguistic question, and including the original legal conventions for interpreting the statute or the constitution at the time of ratification. And I’m very eager to take their cues from that and others who are much more willing and interested in reading the text at a high level of generality to create opportunities to read substantive moral principles into it. So it’s like, maybe this is another temperamental thing, the degree to which they take seriously the text as the legal instrument that constrains based on historical factors versus not.
Joel Alicea (00:48:33):
Yeah, I think just to jump in on what you just said there, the reason I ask the question is because I think sometimes there is a great deal of agreement on the level of fundamentals between the participants in this debate so that it can sometimes be less clear. Like what exactly are they disagreeing about? What is the practical import of this? And I think what you said at the end there is right that there does seem to be more of a disagreement at the implementation stage of taking the natural law theory and then taking it down to the level of constitutional theory that implementation might be the place where there’s a real gap. Any other points on this? Professor Strang, you wanted to jump in.
Lee Strang (00:49:16):
So I agree with that. I think everything that Sherif and you had said as well, and one way I would characterize part of the disagreement would be about as a corollary to the extent to which the original meaning is determine it, how robust of a role does natural law play in constitutional interpretation? I think there’s another aspect to it as well in the debates over natural law and originalism. And that is, so depends on how one understands originalism and in its genealogy and as a project as to how one characterizes it. So one characterization that is floating around is that, originalism is a political project and in fact a fairly narrow political project. So folks who are on the libertarian end of the spectrum and want to emphasize the aspects of the constitution that protect autonomy for individuals. And I think there certainly are folks who are in the originalist family, the originalist tent who fall under that camp.
(00:50:11):
But I don’t think that fits when you look just descriptively at the people who are writing in the field of originalism. They fit all their different perspectives that one has in the political spectrum from social conservative, libertarian to progressive. And I think that’s actually a virtue in a way that perhaps people who propose a more robust use of natural law are unable to achieve. And that is that, we live in a pluralistic country, and so the citizens of that country need to perceive themselves as having reasons to follow the constitution’s original meaning. And if it’s the case that originalists from a variety of political and ideological perspectives perceive the constitutions as giving them reasons, that’s evidence that an average citizen representing those different political perspectives would also see the constitution’s original meaning is giving them reasons to follow it.
(00:51:06):
And there’s actually I think a historical explanation for that as well. When you think of when the Constitution was adopted, its different points, 1787, 1868, the progressive era amendments, the United States at all of those points, and increasingly so was a pluralistic country. Religiously pluralistic later jurisprudentially pluralistic, politically pluralistic. And so, the mechanisms of the constitution are, my argument would be intentionally thin to allow people from those wide variety of perspectives to agree to and follow the constitution’s original meaning. And so a focus on the original meaning gets us part of the benefit of the attractiveness of that original meaning to the pluralistic country that the United States is in a way that focusing more on natural law, especially maybe our narrow conception, maybe we all agree with a narrow conception of natural law might not provide reasons to a large segment of our fellow citizens.
Joel Alicea (00:51:58):
Did you want to say [inaudible 00:51:59].
Kevin Walsh (00:51:59):
I guess I might just add, I mean, when I first heard you ask the question and thought, I don’t know, but then thought, the future, the future is what’s at stake and whether that future for our country, it’s morally justified to maintain continuity with the past. We have the decisive significance of a certain origin in time. We can’t overcome history in that sense. And as we go forward, and there are of course lots of serious discontinuities in our law. I think one area of common ground that pretty much everyone who is debating natural law or who thinks natural law has a place in constitutional law thinks a lot of bad things happened in the 70s. And we might think of in constitutional jurisprudence and we might think of originalism as a reaction in some ways to what happened. And there’s various labels for describing what went wrong.
(00:53:05):
Lee mentioned that we live in a pluralistic world, I think a danger is actually idolatry, constitutional idolatry and projecting certain visions and certain understandings of the human person onto the constitution and enshrining it into our fundamental law. Things like a right to abortion. And so there’s room for discontinuity while maintaining continuity with this thing that started in time. And I think that’s what’s at stake because if originalism is based on a false understanding of the relationship between say, justice in law and if it’s not morally justified, if it’s purely backward looking thing and everything have all these centrifugal things that are pulling us apart, then I think what is at stake is offering an account of why this thing that started at that point in time is worth considering on the terms and continuing on the term set out at that time.
Joel Alicea (00:54:07):
Well, let’s stay on this and I’ll ask you something that’s a little related to this and I’ll start with Professor Walsh on this. What do you think is the biggest misconception about the debate among those who think that originalism is compatible with the natural tradition and those who think it is? And there are a lot of people watching this debate closely think it’s really interesting, but I think that there might be a lot of misconceptions about the debate both by outsiders and those who are participating in the debate themselves. And I’m happy to leave it open to you as to whether you want to identify misconceptions on the originalist side, on the critics side or from the outsider’s perspective. But there does seem to be, at least in my view, a great deal of confusion about what is actually being debated here. Do you have any thoughts on that?
Kevin Walsh (00:54:56):
I think here’s a misconception that is very problematic and that is the equation of positive law and positivism as a jurisprudential approach. Within the natural law tradition, positive law is a wonderful thing. It is essential. It provides a means of coordination. You need authority, you need all the reasons that Sherif in particular explained, positive law is very, very good. One of the leading theorists of positive law is St. Thomas Aquinas. And positivism is a different kind of approach, there’s different ways of understanding positivism, and I’ll give two. One would be something like, all law depends only on and exclusively on social facts. Things that happened in the past or just looking at behaviors now and the acts of certain officials. So law is entirely dependent on social facts, that’s one understanding of positivism. Another is one that equates justice with legality. And the reason that I mentioned that one in particular is, I think that originalists, some originalists are of course to blame, because Justice Black was an originalist of sort and he had really some problems with natural law.
(00:56:17):
But I was struck recently when I was looking at Reading Law, which is the very thick book co-authored by Justice Scalia and Brian Garner. And in their preface they say that, what do they say? So they say, “As a jurisprudential matter, Anglo-American legal systems are premised on a rule of law that equates justice with conformity to law, nothing more. This notion is referred to as the positive law theory of justice whereby the judges follow the law and acted by the legislative.” See, I think they have that confusion too. I don’t think the Anglo-American rule of law is premised on just saying that justice is identical with legality. And their citation for that is a book by Otto Bird. This came out of the, in terms of historiography, this came out of the Mortimer Adler trying to clarify concepts. And so I think this equation of positive law with positivism is dangerous and false and widespread and all around including it sort of the paragons of modern originalism like Justice Scalia.
Joel Alicea (00:57:26):
You have thoughts?
Lee Strang (00:57:28):
I would agree with what Kevin had said. And just to add one addition… So I agree with everything Kevin said about, and often in an equation between originalism and legal positivism, which everybody has argued is not the case. I think another misconception about originalism, which has been around for a long time and continues to make hay, and actually I thought it was put to bed decades ago, is the claim that the original meaning, either regularly or inherently is indeterminate. That there’s a word that when you read in the Constitution it says cruel or equal or due, that one takes that the most abstract and general meaning. And that’s been an argument that’s been around for a long time, I think at least since the 1980s around Dworkin I think made that argument most prominently in the early 1990s. But it continues to play a role today.
(00:58:18):
But I think that that’s actually based on, there’s a charitable interpretation and an uncharitable interpretation. The charitable interpretation is that, that criticism or that understanding is based on an earlier understanding of originalism, which focused just on the text semantic meaning. And the semantic meaning would be the conventional meaning of the words put in the context of the documents with grammar and syntax. So let’s say that we’re thinking about the interstate commerce clause, commerce among the several states. And commerce, the semantic meaning of it would be relatively capacious. And so you’d have a scholar like Jack Balkan who could plausibly argue that interstate commerce clause includes not just economic interchange, but also non-economic social intercourse.
(00:58:59):
But the development of originalist theory over the last 15 years or so has added an additional component and additional thickness to how we understand the original meaning to include not just the context of the document, the conventional meaning, but also the more publicly available context. And when you look at the word commerce among the several states in the context of 1787 and the few years before, you realize it wasn’t focused on social intercourse, it was focused on interstate trade and interstate commerce. So the misperception would be the inherent or normalness of the original meeting, which I think is just, it is the case sometimes, but is not necessarily the case.
Joel Alicea (00:59:38):
Right. Professor Girgis, anything to add?
Sherif Girgis (00:59:40):
I guess in a sentence, I would guess that the most common misconception of each side is the caricature version of it. So the idea that common good constitutionalists don’t do law and originalists don’t do morality. So you can be an originalist and think that there are moral criteria for legal validity. You can think that there needs to be a moral argument for caring about whatever feature of the text you think matters and that there can be moral applications when the text points in that direction. And that law in the paradigm focal sense is substantively just law. And still by the things that we’ve been saying on originalism and similarly common constitutionalists, as I was pointing out earlier, have a place and do see importance in determinate using social facts to fill in the gaps and the details where the natural moral law doesn’t settle in answer.
Joel Alicea (01:00:29):
Well actually Professor Strang response leads in very neatly to the first question that we’re going to take in our Q&A. So I’m going to start with the Q&A from our virtual audience. But for those of you in the room after we get through this question, it’ll be up to you too to supply questions. So I’ll start with Professor Strang on this question. You were discussing this point about underdeterminacy. When the text of the Constitution at even as originally understood with historical sources, doesn’t fully determine the answer to a legal question, it’s under determinant, it’s vague or it’s ambiguous. And the question from one of our virtual audience members is, is it consistent with originalism and a judge’s social role to use natural law maxims as canons of construction, especially where history is under determined.
(01:01:25):
So I take, if I may just elaborate on the questioner’s point to you, I take the question to be asking, well, when the original meaning is not fully determinant, is there any problem with originalism in resorting to natural law reasoning to fill in the gaps? As you were discussing theory of construction, the construction zone in modern originalist scholarship where the history doesn’t get us all the way to an answer in a case. Why can’t we just fill in that additional space with natural law reasoning?
Lee Strang (01:01:59):
So let me say just a couple words about the construction zone and as by way of background. So folks one of the reasons why originalists identified this idea of the original meeting being under determined and that there are construction zones is because it just seems to be the case. If you’re a lawyer for any period of time that it seems like the law runs out or at least becomes really difficult to identify with certainty a right answer to a constitutional question. Now so that’s a virtue of it, it makes originalism more descriptively accurate. But there are some costs to doing so. And one of the costs is, if one of originalism’s virtues, so we’ve heard a lot about laws coordination, but if there’s no determinant, meaning there isn’t much coordination. So there’s cost from regardless of one’s ethical perspective to originalism having a broader construction zone.
(01:02:44):
And so what originals have done, I think very insightfully is different originals have worked hard to identify additional resources to mine to identify original meaning. And so I think the best example, which I think Sherif had referenced earlier is the work by John McGinness and Mike Rapaport about the conventional legal rules of interpretation at the different times it was ratified. And so you don’t just look at conventional meaning and semantic meaning in public context. Part of the public context are the legal rules of interpretation at the time that are, when you think about them, what are they’re? Closure rules. They say that if you have some under determinacy, use one of these closure rules to create thicker, more robust original meaning. So the questioner I’m presuming is saying, “We’ve done all that. We’ve got indeterminacy.”
(01:03:40):
And then in that situation, I think it’s fair to say there’s not a conventional originalist answer at this point, that different originalists have come up with different conclusions. So one option that’s on the table that people have, I thought powerfully argued for is to say that, it depends on the office which one holds as to how one approaches constitutional underdeterminacy. So I’m thinking here of the work of Chris Green. So what Chris has argued is that, in a situation of constitutional under determinacy people in the legislative branch, they can construct that meaning using whatever tools that they wish to do so because that’s part of the delegation in Article one. But people in the judicial branch, Chris, would argue, be limited to only clearly erroneous, in situations where the legislature has clearly over spa stepped determinate original meaning, which has the implication of saying judges almost have no role in constitutional construction.
(01:04:33):
So the short answer is, there’s lots of different approaches, some of them involve deference, some of them involve judges using first order normative principles in the construction zone. Professor [inaudible 01:04:43] actually used to be that position, but now I think he shifted over to a different position.
Joel Alicea (01:04:48):
And I’ll just quickly say actually the way you described Professor Green’s position has a lot of residence with the position that Professor Whittington had when he first developed. That’s the right idea of constitutional construction. That the judges would have very little role in that it would be liquidation through the political process. Right?
Lee Strang (01:05:04):
Yeah. I guess I’ll just say one more point. I think I’m very attracted to Chris’s and Keith’s position over the time because I’ve been doing more research, I’ve been seeing more and more evidence that I think it might have been the case that baked in at least federal judicial power had been a clear error rule. That I think the evidence there is very powerful.
Joel Alicea (01:05:23):
Which John McGinnis has argued for as well and others, right?
Lee Strang (01:05:27):
Yeah.
Joel Alicea (01:05:27):
Profess Walsh, did you want to jump in on this?
Kevin Walsh (01:05:29):
One, I don’t know if it’s a clarification or just the way the question was framed, it seems something like after there’s… If something’s under determinate, are you then allowed to use cannons and things like that? And I suppose I’d take issue with the idea that you first do something that somehow the law just equals the surface linguistic meaning necessarily. And only if that is under determinate in some linguistic fashion that you then proceed to cannons. I think the words of the law are signs for the propositions of law. Now, what does this mean and can you say something a little more practical about this? Sure. You don’t first look to dictionaries and then if you have trouble there, go pull down some treatises. So that preface, I read from reading law that had, I don’t know all sorts of cannons.
(01:06:29):
And that included things like the mens relic cannon, a statute creating a criminal offense whose elements are similar to those of a common law crime, we presume to require a culpable state of mind. So you come to the text with certain, and they’re not only just conventions, but there’s just law on point already. Here’s another one. The cannon of imputed common law, meaning a statute that uses a common law term without defining it, adopts its common law, meaning I was recently teaching a case in torts that had provision of the bankruptcy code talking about malicious and willful injury. And in that case, trying to figure that out, they incorporated the common law doctrine of transferred intent. So that sounds really obscure, whatever. This is just everyday stuff. The cannons of interpretation, structure, the law and interpreters don’t just kind of go to them after the surface, meaning because the surface meaning isn’t always the law.
Joel Alicea (01:07:31):
Okay. Okay. I think we’re going to go to audience questions. I’m going to start back there. Do you have your hand up?
Speaker 6 (01:07:40):
Thank you for speaking to us. Professor Gigis mentioned that the judicial role is socially determined and it seems that it can be determined externally and internally to the role by those who are fulfilling it. So externally, the people, for example, through an exercise of popular sovereignty, translate the natural law into the positive law. They set up a particular structure of the constitution and that structure gives us what the judicial role is. This might be a form of almost originalism as our law maybe taking to its logical extension. You might think that the people could pass a constitutional amendment requiring originalism as a method of judicial interpretation. Now on the flip side, it seems like many of those who identify with common good constitutionalism seem to emphasize the internal determination of the judicial role and that judges just are a certain type of thing. And it’s not dependent on the positive law system, but a judge by virtue of what the role is, is fulfilling a certain duty. Do you agree with that distinction I’ve set up? And do you think that it has any relevance for this debate?
Joel Alicea (01:08:57):
I think that’s an excellent question and I think it’s directed at professor Girgis and then we’ll go to anyone else.
Sherif Girgis (01:09:03):
Yeah. So first, is it an accurate interpretation of coming to constitutionalist arguments? Maybe. So, part of the argument does seem to be, look, this is how our judges have in fact been operating now. That you could read that as an internal point about it lies in the nature of judging. So it could be, this is what our judges were always doing and it’s what they were always understood to be allowed to be doing. So the fact that the day before yesterday we got this idea that judges don’t make law in some really absolute understanding of that, that originalist espouse is just wrong as an interpretation of our practices, including what our constitution, including the kind of customary and the popular acquiescence to judicial practice determined. So I think they might be talking in both veins to the extent that they’re talking about something that lies in the nature of the judicial office itself.
(01:09:58):
I think the closest, the argument that I’ve seen is the one that I rehearsed in my opening, which is that, it lies in the nature of the applies of law rather than the makers of law to be able to look at how this general provision would apply to a case that the legislator might not have foreseen. And so it lies in the nature of anyone who has that role that they have, the natural law requires them to be able to think about whether this general thing should be applied to this unforeseen case. And I think they’re right that the natural moral law requires that somebody be in a position to judge a mismatch like that. Though it doesn’t necessarily follow that it has to be the people that we call federal judges as opposed to others in the system.
Joel Alicea (01:10:40):
Mr. Walsh, did you want to jump in?
Kevin Walsh (01:10:42):
I think I’d just add to that. When we talk about judges, especially in something on natural law, in original meaning, I think what comes to mind is Supreme Court justices. And Supreme Court justices because of the way that our system is constructed are the least judgelike in so many ways of say, the central case of judging. I mean central case of judging might be something like imposing a sentence on someone taking into account all the legally relevant factors and all the factors of that person. But if you think about our Supreme Court, the idea that they get to pick what they decide, agenda setting function, typically not a feature of the central case of judging, not only do they get to pick their agenda, they get to specify which questions they’ll answer. So this is very different and Professor Edward Hartnett has a great article, gosh, I think it involves the Judiciary Act of 1925.
(01:11:45):
So if you search that, you’ll find it. I think it’s called Not the King’s Bench. It’s a wonderful article that talks about all the transformations in judicial self understanding that are a feature of our jurisdictional rules. So when we talk about social construction with law and jurisdictional rules as a tool of social construction of the role that deserves a lot of attention, contrast the idea that they get to set their own agenda with something like Section 25 of the Judiciary Act of 1789. That is a very, very specific provision that says when the Supreme Court is reviewing questions of federal law decided by a state’s highest court, it is limited to only the federal law questions and haven’t talked about the mechanisms of the fading of natural law reasoning from federal law decision making that have been cataloged by the various historians.
(01:12:40):
But in part, the way that Section 25 was used in the Marshall Court to decide how they could explain when they were overturning a decision in a case or that when they were deciding something like Barron versus Baltimore or Calder versus Bull, a section 25 case. So there’s a lot of social construction that comes through the law and the judicial role, their self understanding is so important, but it’s also not the central case of judging at the Supreme Court of the United States because of the system we have.
Joel Alicea (01:13:17):
Anything to add [inaudible 01:13:19]?
Lee Strang (01:13:18):
Just say one thing. So I think it’s a fascinating question. And when it comes to the role of any office including judicial office, I think the natural attrition would say that there are aspects of that office that are natural to that office. But I think there’s a lot of malleability in it and a lot of the malleability would actually be unreasonable. And so what I have in mind is I think most of us think, and when I teach first year students that a court applying what appears to be a new rule to the parties before that case is of a course.
(01:13:52):
But there was a period of time in the 1970s where especially Judge Trainor out in the California Supreme Court was saying, “No, we can’t do that.” Because he had and was advocating a different conception of judging. I think it was an incorrect one, but I think it just shows that if his view had come to dominate in a way, there was a period of time where it might have, it would’ve been, I don’t know if it’s external or internal, that it would’ve been a social construction of how we conceived the office judge, even if I thought it might be unreasonable.
Joel Alicea (01:14:21):
I think we’ve come to the end of our time, so please join me in thanking our panelists.