Catholicism & Constitution: Originalism’s Moral Foundations Need Debate

We are living in a time of confusion about, and division over, the nature and future of American constitutionalism. Much of this tumult is the result of appointments to the Supreme Court. Legal conservatives have succeeded in appointing a majority of justices committed to originalism, which holds that government officials, including federal judges, are bound by the meaning that constitutional provisions had when they were enacted. Since originalism started gaining ground in law and politics in the 1980s, scholars and activists on the left have argued that this approach to judging perpetuates injustices rooted in the Founding. More recently, some Catholic scholars and activists on the right have also attacked originalism, arguing that it has failed to halt progressive legal victories on contested social and political questions and lacks the moral principles to do so. Despite the significant differences among these critics of originalism, they agree on at least one thing: Originalism is a morally empty theory that cannot justify the results it produces in important and controversial cases.

This debate is part of a more general unease about the Constitution. Calls among some on the left to abolish the Electoral College and pack the Supreme Court reflect the restless strain in American politics. Calls among some on the religious right to consolidate more power in the hands of the administrative state and use that power to weaken left-wing institutions likewise demonstrate the unsettled disposition of America’s constitutional culture. These proposals, on the left and on the right, are premised on distinctive moral claims about the ends and means of politics, about the nature of the American constitutional experiment. They can be addressed, ultimately, only by understanding what the nature and purpose of constitutional law are — and, therefore, what the nature and purpose of our Constitution are. These are distinctively moral questions.

We are living in a time of confusion about, and division over, the nature and future of American constitutionalism. Much of this tumult is the result of appointments to the Supreme Court. Legal conservatives have succeeded in appointing a majority of justices committed to originalism, which holds that government officials, including federal judges, are bound by the meaning that constitutional provisions had when they were enacted. Since originalism started gaining ground in law and politics in the 1980s, scholars and activists on the left have argued that this approach to judging perpetuates injustices rooted in the Founding. More recently, some Catholic scholars and activists on the right have also attacked originalism, arguing that it has failed to halt progressive legal victories on contested social and political questions and lacks the moral principles to do so. Despite the significant differences among these critics of originalism, they agree on at least one thing: Originalism is a morally empty theory that cannot justify the results it produces in important and controversial cases.

This debate is part of a more general unease about the Constitution. Calls among some on the left to abolish the Electoral College and pack the Supreme Court reflect the restless strain in American politics. Calls among some on the religious right to consolidate more power in the hands of the administrative state and use that power to weaken left-wing institutions likewise demonstrate the unsettled disposition of America’s constitutional culture. These proposals, on the left and on the right, are premised on distinctive moral claims about the ends and means of politics, about the nature of the American constitutional experiment. They can be addressed, ultimately, only by understanding what the nature and purpose of constitutional law are — and, therefore, what the nature and purpose of our Constitution are. These are distinctively moral questions.