We offer here a very few thoughts — essentially, only one thought — about a recent argument for a kind of generic originalism. The argument was published by Joel Alicea, a law professor at the Catholic University of America, in a draft paper titled “The Moral Authority of Original Meaning.”[1] Given that the paper claims to ground its argument in the classical legal tradition; that it has been heavily promoted by the quasi-official organs of legal originalism, such as the National Review and the Legal Theory Blog; and that the paper is, if nothing else, strikingly ambitious, a brief response seems warranted.
Alicea correctly notes the critical role that legitimate political authority plays in securing the common good. In the United States, Alicea argues, the people are sovereign and the ultimate legitimate political authority. He therefore claims that “some form”[2] of originalism is required to preserve the people’s legitimate authority by ensuring their posited commands are respected and not displaced by fiat, because respecting this authority is essential to achieving the common good.[3] Looking beyond the United States, Alicea suggests that some form of originalism may be required to preserve the people’s legitimate authority in any system where they are the sovereign authority — wherever there is a “regime operating under a constitution (written or unwritten) that is designed to serve as a higher form of positive law than acts of ordinary politics.”[4]
Alicea says his purpose is merely to show that, given the classical legal tradition’s high respect for law posited by legitimate political authority, “some form of originalism is required.”[5] He does not argue that this version, or that version, or some other version of originalism (there are now probably a baker’s dozen) is affirmatively required by the classical legal tradition,[6] its understanding of the right relationship between background principles of legality (ius) and posited law (lex), or the importance of respecting posited law.[7]The key question then becomes: what exactly does Alicea mean by this generic, lowest-common-denominator version of originalism? The answer is thin gruel.
When Alicea states that “some form” of originalism is required, what he seems to mean, and ends up more or less saying,[8] is merely this: first, all officials are compelled to faithfully adhere to and interpret the meaning of X, Y or Z provisions posited and fixed by a legitimate political authority at a given historical point in time – whether 1789, 1868, or 1992 – unless and until those provisions are lawfully repealed or replaced; and second, interpreters of the law (such as judges) ought not to displace the posited law by reference to all-things-considered moral decision making.
Unfortunately, Alicea has here tried to relabel as “originalism” what is really the common legal heritage of almost all of mankind, yesterday and today. (This effort to appropriate all constitutional law under a label evolved by American legal conservatives in the 1970s is best seen as an extreme version of American conceptual and temporal parochialism, an issue we return to shortly). No developed legal system anywhere and at any time, to our knowledge anyway, fails to respect these two thin constraints. They are banalities, truisms, universally understood and accepted by all remotely sensible legal systems — the vast bulk of which would laughingly, or with some confusion, reject the label “originalism.” The classical legal tradition does not, of course, deny either of them; in particular, it does not at all allow judges to engage in all-things-considered moralizing at the point of application, as we have explained. The classical judge is constrained not only by appropriate respect for posited law, but also by legal role morality (itself a crucial aspect of political morality), by second-order rules of jurisdiction and deference, and by the objective existence of the background principles of ius.
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