Discover more from The Freemen News-Letter
What I've Learned as a Student of Originalism
In my first full year as a student of political philosophy, I've developed a deeper appreciation for the natural law tradition, and a better understanding of the nuances in originalist jurisprudence.
My return to full-time College has been illuminating. While I have changed my emphasis from the last time I attended College, from American History to Political Theory and Constitutional Studies, I have not embarked on this journey as an empty vessel.
I’ve often considered myself a self-taught “plebeian philosopher.” I’ve done extensive reading of political and philosophical texts and have pretty solid ideas of where my own views fall. I’ve long been a great admirer and proponent of such figures as Locke, Jefferson, Madison, Hayek, Meyer, and Buckley. Because of this, I’m quite the strident classical liberal, a committed modern conservative, and, in many ways, one of the few “fusionists” left amidst the ongoing political realignment.
Because of the stances I’ve developed through long and careful study of various philosophical traditions, it’s no surprise that I’m a natural ally of originalism and that I already had an appreciation for this judicial view as well as, if not an extensive understanding of it, at least a sufficiently cursory grasp of its premises to embrace it over other views, such as living constitutionalism.
Over the last year, I’ve had a tremendous expansion of my understanding of the origins of various legal theories, their application in modern society, and have especially had my eyes opened to the ways that my already established views on political philosophy have bridges to the originalist view of jurisprudence. But perhaps the biggest revelations were just how different some of the schools of originalism are and the ways I agree and disagree with aspects of it.
The two subjects of which I have been the most ecstatic to study have been natural law theory and liberal governance (classical liberalism, not modern liberalism). While gaining an excellent refresher of things I was already familiar with, my knowledge has been greatly expanded.
I was already familiar with and had read much of the works of Jefferson, Adams, Madison, Locke, and Montesquieu. I've long been a student of Enlightenment Era literature as well as what followed with the application of Enlightenment values in the early American Republic.
But over the course of this last year’s studies, I have greatly expanded my knowledge. I have been introduced to and gained a fondness for such figures as William Blackstone, Edward Coke, and St. Thomas Aquinas while gaining a much deeper appreciation for how much my own philosophical tradition owes to ancient and roman philosophers like Plato, Aristotle, and Cicero.
It’s been amazing to discover that my views before this semester had taken a somewhat narrow view of human history. I tended to, in some ways, see a long gulf of darkness and backwardness until Enlightenment figures posited a new approach to governance, leading eventually to the creation of the American Republic and then the slow but steady perpetuation of liberal values across the world. It’s been my happy pleasure to discover, if not always a solid continuity, at least a steady persistence of certain philosophical ideas across human history both interacting positively and dissenting from the trends of history.
I was, for example, already familiar with the notion that natural law and natural rights can offer a justification and even create a duty to oppose established law. I knew about Martin Luther King Jr.’s Letter from a Birmingham Jail where he posits a “legal [and] moral responsibility to obey just laws” while having a “moral responsibility to disobey unjust laws.”
I was aware that this thought process was connected to the Declaration of Independence’s assertion that, “when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government.”
I was even aware that this thought process connected to Locke’s Second Treatise on Civil Government where he claims, “tyranny is the exercise of power beyond right, which no body can have a right to” as he sought to lay the groundwork for a philosophical justification for the Glorious Revolution.
But what I had missed and what I’ve had opened up to my view was the deeper existence of natural law tradition throughout history. I learned what I had missed in a Letter from a Birmingham Jail, that it was Aquinas who asserted, “an unjust law is no law at all.” I discovered that Cicero asserted, “True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting” and that, “We cannot be freed from its obligations by senate or people.” I learned through the lectures of the class that Aristotle offered advice to a friend that natural law should be used in court to argue that public law is void if it betrays natural law.
These were happy discoveries. But the journey of the course’s explanation of natural law, and its converse positive law, also led to a startling discovery that I had little to no appreciation for: my favored theory on jurisprudence, originalism, does not always respect natural law and is sometimes hostile to it.
Specifically, Scalia argues that “natural law does make its demands upon judges –but not the demand that they render judgments that contradict positive law. Where positive law places judges in the position of being the instrument of evil, the judge must recuse from the case or (if there are many such cases) resign from the bench.”
As I looked about for other sources on the matter, I discovered that the other “founding father of originalism,” Robert Bork, held a similar view. He asserts that there is a “limited sense in which natural law or moral philosophy is useful” and, indeed, a “larger, more free-hand sense in which it is pernicious.” (Bork)
For me, this didn’t square with my understanding of the Ninth Amendment of the Constitution, that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” My view of “constitutional rights” is that they are an enumeration of natural rights that exist independent of the document and that the list is far from exhaustive and based on even more fundamental rights.
The Constitution, as I understand it, presumes the existence of natural rights and protects them. My view that originalism, as an approach to jurisprudence, was a bulwark for my natural rights against modern conventions was somewhat shattered as I discovered it was aggressive against legal interpretation based on ever-changing modern views of morals and morality but sometimes permissive and deferential to acts of government that violate natural rights but are not strictly prohibited in the Constitution.
A chief example is my view that the constitutional enumeration of the right to bear arms is rooted in the fundamental right of self-defense. My presumption on originalism, before this class, was that an originalist judge would strike down a law that allows citizens to own firearms but disallows them from bringing them out of their house for reasons other than transportation for recreational uses.
I would have thought that an originalist would see such a law as a violation of the spirit of the right, and that, being barred from obtaining any legal way to carry the firearm for the purpose of self-defense, that the law was void for violating a natural right despite being allowed under a narrow interpretation of the text’s enumeration of the right to bear arms.
To my surprise, a certain flavor of originalist might narrowly construe the right and give more deference to the will of the legislature than to the constitutional right’s connection to natural law. This deference to positive law explains, for example, Scalia’s stance in Employment Division v. Smith, which I found astounding.
Were it not for my introduction to another originalist, Judge O’Scannlain, and a deeper perusal of originalist thought, I might have ended the semester as an uncertain and confused originalist.
O’Scannlain explains that “When it came to writing a Constitution, the Framers aimed to create a positive law that would protect pre-existing natural rights” and that “a discerning constitutional thinker must appreciate the extent to which the constitutional project quintessentially was an effort to codify pre-existing natural law rights” but that, and this is crucial, “a judge certainly should not invalidate legislation simply because it does not comport with the judge’s own views of what the natural law requires.”
I’ve been able to come to an understanding that originalism is, to borrow Scalia’s turn-of-phrase, “something of a compromise” between positive law and natural law.
This is only one of many philosophical journeys I’ve taken in the last year that has both broadened and enriched my already established views. As a conservative painfully aware of the biases I often face in popular media and in the academy, I nevertheless encourage my fellow conservatives to eschew the voices of disengagement. Get involved, get engaged, grow your perspective, and work to establish a deeper philosophical grounding of the values you already hold.