Originalism Needs an Adult Education Program

In the academic world, originalism has become the theory of constitutional interpretation to beat. It has developed a rich and subtle literature both explaining its content and defending its use. As a result of these labors, a large gap has opened between the understanding of originalism within the academy and outside it. That gap was very visible in the confirmation hearing for Michael Brennan for the Seventh Circuit Court of Appeals, because the discussion of originalism was confused and burdened with some elementary mistakes. This is not to criticize the participating Senators, who came of age when modern originalism was not even taught in law schools, or the nominee, who in part was surely just trying to avoid controversy in a very closely divided Senate. But the performance all around suggests the need to make originalism more publicly accessible so that it is not caricatured and undermined.

The discussion began when Senator John Kennedy of Louisiana asked the nominee how to interpret ambiguous provisions in the Constitution. The nominee could have suggested what I think now would be the standard approach among most originalists: that one should follow the best interpretation among the possibilities. Senator Kennedy did seem to acknowledge that there might be ways of resolving ambiguity, such as by looking at the Federalist papers. But he then moved in for what he thought was a devastating question which I paraphrase: With the Federalist Papers you might discover what two Framers thought. What about the other 39?   The nominee who had mentioned in passing that originalism was defined by its public meaning responded to the effect that in that case originalists would roll up their sleeves and work harder.  The better answer is that Federalist papers were public documents favoring the ratification of the  Constitution. Unpublished thoughts and beliefs of the other Framers were not likely to be as relevant to the public meaning of the document, even if we could find evidence of them.  Senator Kennedy seemed to be assuming an old and not widely held view of originalism—that it is a search for the intent of the Framers.

Senator Diane Feinstein then followed up, laboring I believe under a similar misimpression. She observed correctly that the country had changed a lot since the Framing. How, for instance,  could one apply the Constitution to a smart phone? That would indeed be difficult if one had to find an intent about a smartphone.  Feinstein also appeared to be rejecting originalism on the more general view that it cannot address social change.  Originalists have offered many answers to that: Mike Rappaport and I have suggested that the Constitution has at least three ways of addressing change: leaving matters to the political branches to change norms by legislation, creating an amendment process to change the Constitution, and writing some provisions of the Constitution as principles that whose application can cover new facts. The nominee did not offer a great response, just suggesting that judges could apply the “values of the Framers” to new situations.

This led Senator Mazie Hirono to wonder whether originalism so defined could cover most any modern Supreme Court decision. And she is right that a focus on high level values rather than text may be compatible with living constitutionalism.

The hearing persuaded me that there needs to be a better way of translating the progress in originalism in the academic world to the public. First, President Trump could send to the Senate an appellate court nominee who has used originalism centrally in his scholarship. That nominee would have no choice but to educate the Senators and though them the public. It is rumored that Professor Nicholas Rosenkranz will be nominated to the Second Circuit. There are many good reasons to nominate such a superb candidate and his capacity for public education is yet another.

Second, Senator Ted Cruz, the Chairman of the Senate Subcommittee on the Constitution, could convene a hearing on originalism. Finally, the Federalist Society could make originalism the theme of its National Convention.  In the early years of the Society this seemed to be the topic almost every other year, but it has not been taken up as the central subject in over a decade.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on January 26, 2018 at 11:04:10 am

Mr. McGinnis:
I am that man el captain - the general public you are talking about and would love to learn and understand "originalism" form the ground up. I wish there was a grass roots vehicle to assist my studies and I'm sure there many others that are looking for that resource as well. I've spent the last eight years attempting to "dig it out of the ground" on my own studing governance of North America from Jamestown forward. This blog is the first item on my study agenda every morning and has a been a wonderful resource. I've spend countless hours researching every avenue I can find to assist in this endeavor. All academy I've look into on the online world is advanced and with vocabulary and topic as if you turned on the TV and pick up a baseball game in the fifth inning and didn't know anything about it and was try to understand it by the ninth. So I fill in the puzzle of self study with a very extended library and online classes where I can find it. I even listen to the your conference each February attempting to find the papers and work through and follow the best I can. I find the whole debate and discussion very informative and would love to be a "bird" in the room for observation. My college degree was in 73 and after retirement pursing the truth of America is my bucket list endeavor. I believe the 101 study of originalism would assist in educating the "people" to understand the grand debate. Policy should alway follow first principles for good government by people for it is the "sheet anchor of American republicanism. Public education of originalism and it's cornerstone foundation is to understand first principles and would go a long ways to see and to understand how the sausage is made. Then the public can use "reflection and choice" for argument and debate rather then 'mud fights' with no subsitive end that has brought America into our wilderness years. Thank you for allow me to submit this simple message and reflection from a voice in the America wilderness.

read full comment
Image of Danny Harvanek
Danny Harvanek
on January 26, 2018 at 12:22:57 pm

It seems that many advocates of "originialism" in its various flavors have been led astray by the silly idea that the underlying mindset of the Founders was the so-called "liberal" philosophy of John Locke and Thomas Hobbes, which leads to John Stuart Mill's bastardized definition of liberty as doing what you please as long as you don't harm others.

However, the legal education of the Founders, as well as the moral philosophy of their secondary and tertiary educations, as well as the dominant treatise on international law at the time (Vattel), was rooted in Ciceronian natural law, in which government is an instrument for promoting virtue in the population, with happiness the byproduct of "perfected" or habitually virtuous behavior.

This question of the underlying orientation of the Founders' thought has significant ramifications for modern-day constitutional questions involving drug use, gay marriage, pornography, and the right to privacy and abortion.

Perhaps the society that many or most of us want to have in the USA today is radically different from the ideals of the Founders. Should we be bound by their thought? On the other hand, perhaps modern American society is a train wreck heading over a cliff. Is it useless or counterproductive for modern-day self-appointed moral guardians to play the role of Cassandra?

Whatever the answers to these questions, I think it is fundamentally dishonest for scholars to pretend that the collective thought of the American Founding was something radically different from what it was.

Over the past year or so, I have repeatedly brought up this issue, leading to some interesting exchanges on other threads. However, unlike several others, John McGinnis has responded with a deafening silence, while continuing to promote a position that seems to have feet of clay.

I will share three quotes from past months, inviting John McGinnis to comment:

The following was posted first on Dec. 29, 2017 at http://www.libertylawsite.org/2017/12/29/classical-liberalism-in-2017-the-best-and-worst-of-times/#comments

John McGinnis writes that “the original Constitution with its structural checks on government power and protection of designated liberties is conducive to classical liberalism.”

Over the past months, I have had several opportunities to discuss the evidence that the original Constitution was rooted in classical (Ciceronian) natural law philosophy, which would appear to be antithetical to classical liberalism.

For example, “liberty,” in the natural law tradition as understood by the American founders, meant freedom from internal compulsions as well as freedom from coercive abuses of governmental authority. Liberty meant the ability to follow the law of nature, starting with the Golden Rule: Do unto others as you would they did unto you. Benevolence was the pathway toward happiness, and the “pursuit of happiness” meant developing the habit of doing good to others.

John Stuart Mill, who “inherited” his father’s position as the intelligence chief of the genocidal, dope-peddling British East India Company (whose earlier parliamentary bailout precipitated the Boston Tea Party, setting the colonies on their course toward revolution and independence), followed in the footsteps of Adam Smith and John Locke (both toadys of leading British oligarchs), undermining the classical understanding of liberty.

Mill’s definition of ability to do whatever you want as long as you don’t harm others ignores sexual self-restraint as a fundamental component of liberty. Lust, in the Founders’ Ciceronian natural law tradition, was one of the “four disorders of the soul” (together with distress, fear and ecstasy) that prevent the attainment of happiness. John Adams, at the beginning of his autobiography, commends “innocence” to his children because it enables a clean conscience, a prerequisite for happiness. A clean conscience is part of “internal peace,” one of the elements of happiness that Adams wrote into the Continental Congress’s May 1776 independence resolution, together with “virtue” and “good order” (being the absence of the above-mentioned disorders of the soul).

Classical liberalism, as opposed to John Adams once again in the 1780 Massachusetts Constitution, ignores or rejects the importance of the government in encouraging virtue in the population, as a way of “promoting the general welfare,” and of course happiness, according to the Founders’ legal light Sir Edward Coke, was the “summum bonum” or the highest good. The happiness of the people, according to Chief Justice Marshall in Marbury v. Madison, was the starting point for understanding the American federal system.

My point here is that an originalist approach to the Constitution seems to be antithetical to the British Empire’s classical liberalism.


And the following was originally posted on Nov. 25, 2017 at http://www.libertylawsite.org/2017/11/16/anglifying-american-conservatism/#comments

My understanding is that the context of the Federalist Papers — the underlying legal and political assumptions shaped by the college education and legal training of the time — is generally ignored. In my opinion, James Wilson’s law lectures are an excellent source for bringing back to life this intellectual landscape. Wilson’s law lectures are online, with editorial commentary, here: http://oll.libertyfund.org/titles/wilson-collected-works-of-james-wilson-vol-1
Wilson, in his lecture on evidence, lambasted the starting point of Lockean epistemology as “absurd and without foundation.” In another lecture, naming Edmund Burke but arguably with Locke in mind, Wilson condemned the view that political society intercepts the connection between men and their natural rights as “tyranny.”

Young Hamilton and Madison can be thought of as junior partners of Wilson, Robert Morris and Benjamin Franklin, and of course George Washington and John Jay were part of the team. Their shared program included creating the physical and financial infrastructure necessary to foster industrialization, but of course Madison eventually jumped ship after Franklin died.

Regarding the Lockean interpretation of the Declaration of Independence, my understanding is that it became entrenched during the Cold War, but it was around for a lot longer. In the 1820s, a young man named Richard Henry Lee went around claiming that Jefferson copied from Locke the ideas that he put into the Declaration, and scholars have since confused young Lee with his grandfather, the 1776 congressional delegate who introduced the independence resolution that was incorporated as the Declaration’s penultimate sentence.

In 1904 a professor named Friedenwald wrote a book on the Declaration claiming that Locke’s Second Treatise was “engraved on Jefferson’s mind,” and a decade later Carl Becker wrote a book (still in print, I believe) claiming that Jefferson copied Locke when writing the Declaration.


And a follow-up comment of Nov. 29 on that same thread:

... the plain meaning of the term “unalienable rights,” which was introduced into eighteenth-century political discourse by Francis Hutcheson, in his “Inquiry into the Original of our Ideas of Beauty and Virtue” (in the 1730s required reading at Harvard College)(Fiering 1981, 199) and repeated in his “Short Introduction to Moral Philosophy” (used as a textbook at the College of Philadelphia) (Robbins 1954, 215-16). Hutcheson was “probably the most influential and respected moral philosopher in America in the eighteenth century.” (Fiering 1981, 199) In 1761, Hutcheson was publicly endorsed as “an approved writer on ethics” in the semi-official Massachusetts Election Sermon (delivered by Rev. Benjamin Stevens), which also embraced Hutcheson’s Ciceronian phrase “safety and happiness” as the purpose of government. Francis Alison, the professor of moral philosophy at the College of Philadelphia, was a former student of Hutcheson who closely followed Hutcheson’s thought. (Sloan 1971, 88) Alison’s students included “a surprisingly large number of active, well-known patriots,” including three signers of the Declaration of Independence, who “learned their patriotic principles from Hutcheson and Alison.” (Norton 1976, 1548, 1566, 1567) Another signer of the Declaration of Independence, Rev. John Witherspoon of the College of New Jersey, relied heavily on Hutcheson’s views in his own lectures on moral philosophy. (Witherspoon 1982, 27, 29, 35-37)(Sloan 1971, 122-25)

“Unalienable rights,” as Hutcheson used the phrase that he himself coined, are the rights of conscience, corresponding to our fundamental duties of piety and benevolence — the two commandments of Jesus Christ, which were adumbrated in Cicero. Burlamaqui (who was also endorsed as an “approved writer” in the 1761 Massachusetts Election Sermon) made the same point, although his English translation used the phrase “rights that cannot be renounced” as those rights that correspond to fundamental duties.

John Adams famously wrote to Jefferson (June 28, 1813) that the Founders were unanimous in supporting the “general principles of English liberty” (and here your reference to Coke and the 1628 Bill of Right fits in, together with Magna Carta, etc.) AND the “general principles of Christianity” [piety and benevolence] which Adams conflated with Ciceronian natural law. As Sir Edward Coke wrote in the preface of the fourth volume of his Reports on the Laws of England, “piety and devotion toward God” was “the fountaine of all happiness, the true Summum Bonum.” Adams, in his letter to Jefferson, was subtly reminding Jefferson that it was ADAMS (not Jefferson) who defined safety (life, liberty, and property: the general principles of English liberty) and happiness (including virtue, which Adams clearly associated with the general principles of Christianity) in the May 1776 independence resolution to which John Marshall (who had been appointed Chief Justice by President John Adams) alluded in Marbury v. Madison.

read full comment
Image of John Schmeeckle
John Schmeeckle
on January 26, 2018 at 16:36:48 pm


Nice take on this!

I suspect that some may gravitate to the "classic liberalism" exegesis of the Founding for eityher of two reasons. First, a particular attachment to such an explanation as it may support their own view of the role and propriety of "market-oriented societies" (see globalists and NRO free traders). Second, it may simply reflect a (willful?) ignorance of a choice made by the Founders to not have an established religion. One may thus quote Jefferson, Franklin and others who at various times offered commentary supposed to reflect a "deist" point of view, at best, and, at worst, a view dismissive of religious sentiment.
YET, all of the same Founders are known to have made numerous comments in support of organized religion. Paraphrasing, they all expressed the belief that the new Republic was made for, indeed may have REQUIRED, a religious people.

It is in this expressed belief that a certain degree of religiosity was required for the proper functioning and sustaining of the Republic where we may discern the belief of the Founders in the Ciceronian, or natural rights impulse toward *virtue*.

It may be argued that, given the history of the religious wars in England and Europe in general, that the founbders were hesitant to delegate the inculcation of virtue to ANY one specific religion and have that religion(s) function as a virtue inducing arm of the Republic. History had shown the difficulty of such an approach; rather, it may be supposed that the founders, aware of history, thought it best to allow the various sects to provide instruction on morals and virtue. This, too, may be evidenced by the almost universal support for Churches and Church inspired education during the early years of the Republic.

Sadly, this strategy has resulted in a political epistemology which now denies the both the presence and value of virtue and views with hostility any notion of a government effort to instill / promote a virtuous life. Thus, we observe someone such as Deneen blaming our very Founding for the unhealthy state of the Republic. The fault he claims is not in our stars but in our Constitutional firmament. "Blame the Declaration" says he, all the while touting 'classical liberalism as our goal. Others would have us accept the "so long as you do no harm" thesis and end up as "open borders libertarians" who object to any and all governmental support of morals or traditions.

They have come to such a place BECAUSE a religious sentiment, viewed by the founders as essential to the health of the Republic, is now long diminished or absent in that Republic. With that absence came a loss of the appreciation of virtue.

One may argue that the founders were deists (arguable, mind you, but nowhere near conclusive); yet, it would be foolhardy to argue that the founders did not recognize the need for a solid religious sentiment, a deep moral sense, within the body of the polity.

And so we have come to be precisely that which we were intended NOT to be. Creatures propelled by, motivated by a Lockean conception of acquisition within legally prescribed bounds - NOTHING MORE!!!!

read full comment
Image of gabe
on January 26, 2018 at 18:03:42 pm

Oops, forgot this:


An example of what happens when you let the STATE (Ok, California barely qualifies as a functioning state) determine what is virtuous and then *mandates* virtuous behavior with all the force of the State.

Better to leave it to a multitude of actors.

read full comment
Image of gabe
on January 26, 2018 at 18:11:59 pm

Oh boy - I could NOT RESIST when I read this:


It appears that the *science* behind California *straw crisis* is the invention of a 9 year old boy. How's that for the left's love of science?

read full comment
Image of gabe
on January 26, 2018 at 21:41:44 pm

“I. That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.”
-Pennsylvania Constitution Declaration of Rights (1776)

I think it would be hard to pursue happiness when you and your neighbors are constantly having their homes searched, and their persons seized and imprisoned, for victimless crimes like recreational drug use, gay anal sex, violent video games, gangsta rap, etc.

Freedom of religion means not having to abide by the morals of your religion. If i have to act like I believe your religion by practicing its morals, then i'm not really free from your religion, even if I don't have to believe in your god or celebrate your holidays.

The right not to be Christian means not having to act like a Christian, i.e., not using drugs, not having gay sex, etc. Just like the right to be Muslim means not having to act like a Muslim, i.e., not eating pork, not drinking alcohol, etc.
If you had to abide by Muslim morality by law, you wouldn't think you had the freedom not to be Muslim; well it's the same with Christianity. Just like you don't have to practice Muslim morality, I don't have to practice Christian morality. And the only way to not have to practice other's morality is having the legal right not to do so, i.e., having the first amendment.

read full comment
Image of Jefferson's Big Beautiful Wall
Jefferson's Big Beautiful Wall
on January 27, 2018 at 18:12:58 pm

gabe, I think it's fair to say that the Founders partially "outsourced" government's role in the promotion of virtue when they spun off religion from the previously-unified religion/government complex that was the norm in Europe.

However, at the state level in the early Union, the promotion of virtue was a vital concern, as has been extensively documented in Thomas G. West's recent "The Political Theory of the American Founding."

I think that the very best example of Founding thought on how government can/should promote virtue (perhaps a good object lesson for bureaucratic-minded California micro-managers) was written into the 1780 Massachusetts Constitution (ch. 5, sec. 2) by John Adams:

"Wisdom and knowledge, as well as virtue, diffused generally among the body of the people, being necessary for the preservation of their rights and liberties; and as these depend on spreading the opportunities and advantages of education in the various parts of the country, and among the different orders of the people, it shall be the duty of legislatures and magistrates, in all future periods of this commonwealth, to cherish the interests of literature and the sciences, and all seminaries of them; especially the university at Cambridge, public schools and grammar schools in the towns; to encourage private societies and public institutions, rewards and immunities, for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and a natural history of the country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and frugality, honesty and punctuality in their dealings; sincerity, good humor, and all social affections, and generous sentiments, among the people."

read full comment
Image of John Schmeeckle
John Schmeeckle
on January 27, 2018 at 20:16:03 pm

In my early (and continuing) efforts to introduce this forum to the idea of public use of the agreement that is offered in the preamble in order to establish civic morality based on the-objective-truth, I stated that law professors may ask themselves, “Does my work collaborate with civic citizens?” If “No,” then the professor might want to make changes so as to collaborate with fellow citizens. I suggest engaging the public: They include adults, some of whom are in charge of the American republic.
I see no evidence that the public wants originalism. In fact, I think the public is too psychologically powerful to submit to controversies from the past and the massive volumes of commentary from 230 years of competitive scholarship.
In the competition between Manafort, whose family and home was invaded (it seems, unconstitutionally) by order of Mueller’s heavy-handed zeal, I think the public will side with Manafort. The public thinks a man and family and home are innocent until proven guilty; its seems Mueller abused the Manafort family.
Law professors, lawyers, Senators, and scholars are first citizens, who, on reading the agreement that is offered in the preamble may make a choice: either to trust and commit to the civic agreement or to be a dissident to the preamble’s offer. Abraham Lincoln said that justice comes from a civic people.
Likewise, a person has the authority to spend his or her personal energy to behave for responsible freedom or not. If so, he or she may develop the judgment on which to behave with integrity. Tragically, many people who witness before Congress honestly express never having encountered integrity. Perhaps James Comey is another tragic example.
When a civic citizen is collaborating to discover and benefit from the-objective-truth, he or she may discover injustice in the law and collaborate for justice. If so, originalism has little value beyond the text to be amended. To put it another way, the-objective-truth does not respond to originalism. Rather originalism gets corrected by the-objective-truth.
The-objective-truth about slavery existed long before slavery was first practiced. Was any originalism ever pertinent to slavery? It seems not.

read full comment
Image of Phillip Beaver
Phillip Beaver
on January 28, 2018 at 12:08:19 pm


You conflate superficial "expressions" of morals, i.e., sex, drugs [and rock n' roll] with an underlying and superior stance / epistemology of *VIRTUE*.

They are not the same, nor may it be said that the founders actually sought to impose a particular religion's / sect's teachings on *morality*. It was virtue that was under discussion - not Episcopalian sensibilities. AND the founders intentions are evidenced BY the First Amendment - so let us not once again raise the specter of an American Caliphate or Papacy.

read full comment
Image of Adams tunnel borer
Adams tunnel borer
on January 28, 2018 at 12:28:37 pm


Thx and once again you spur me to pursue a topic. I had forgotten about West's book but have now ordered it.

read full comment
Image of gabe
on January 28, 2018 at 18:32:18 pm

You touch on several points that are worth discussing. I'll share a few thoughts and invite you to respond.

First of all, your quote from the Pennsylvania Declaration of Rights is a paraphrase of the Virginia Declaration of Rights, which is a paraphrase of the May 1776 congressional independence resolution, which actually gives definitions of "happiness" and "safety." I wrote about that here: http://startingpointsjournal.com/may-resolution-declaration-of-independence/

Second, John Dickinson in 1765 and again in 1768, wrote that security of property is a prerequisite for happiness. That seems to be in the same neighborhood as a point that you bring up. Obviously, living in fear of government witch-hunts is inconsistent with happiness.

However, you mention "recreational drug use, gay anal sex, violent video games, gangsta rap, etc." It seems to me that all of these are inconsistent with the pursuit of happiness as defined by the Founders in 1776: "internal peace, virtue, and good order." Virtue, as understood by the Founders, prominently included benevolence. In their collective thought, it is by loving others that we become capable of happiness.

Finally, you seem to be conflating religion with morality, which gets tricky. The Founders saw organized religion as indispensable for the promotion of morality among the people. And they saw the promotion of morality as indispensable for maintaining a republican form of government. You mention the First Amendment, which prohibited the FEDERAL government from establishing a state religion, but it placed no such restriction on the state governments.

However, the clear trend at the time in the state governments was away from established churches, while enforcing moral standards as understood by community consensus that overlapped the moral values of the various Christian denominations. Obviously, times have changed, and that brings up the question of "originalist" interpretation of the Constitution in relation to "victimless crimes" that were abhorrent to the Founders.

read full comment
Image of John Schmeeckle
John Schmeeckle
on January 29, 2018 at 01:44:02 am

"Finally, you seem to be conflating religion with morality"

While you can have morality without religion, your religion almost necessarily includes a morality. So if I'm to be free of your religion, I must also be free of your morality. Again, to use the obvious example, if you had to live by Muslim morality, you would say that you no longer had the right not to be Muslim, even if you didn't have to say you believed in it and even if you didn't have to honor their holidays. The right to be Christian is not only the right to practice Christian morality, but it's the right not to practice Muslim morality. So if I'm an atheist, the right not to be Christian or Muslim includes the right not to practice Christian or Muslim morality.

If the Muslims became a majority and outlawed eating pork tomorrow, you wouldn't say that's perfectly within the enumerated powers of government, or within the police powers of state government, you would say that it's a moral law and therefore it violates your right not to practice Muslim morality. The same is true for prohibitions on gay sex, recreational drug use, violent video games, gangsta rap, etc. They are based on Christian or Muslim morality, and not on harm--like prohibitions on murder, rape, arson, etc. Unlike murder which is intrinsically harmful, smoking pot or playing Call of Duty doesn't necessarily hurt anyone, in fact most pot smokers and people who play Call of Duty live almost exactly as long as everyone who doesn't--as do their neighbors.

I'm not saying you can't find secular rationalizations for outlawing pork or marijuana or Doom or Jay-Z, but the vast majority of people who believe that other can be legally punished for those activities believe that they should be punished even if there is no victim and no harm--which shows they believe it is bad for moral reasons and not because it prevents civilization.

read full comment
Image of Room 327
Room 327
on January 29, 2018 at 02:06:38 am

If you suddenly had to live by Muslim or Buddhist morality, you would immediately recognize that any secular reason given for the law was a mask for the religious reasons, because once you tried to argue against the secular reasons they would say, well it doesn't matter. And that's what Christians do with their morality, too. Even if you can prove that the things they want to ban like recreational drugs, gay sex, violent video games are victimless crimes, they will tell you it doesn't matter and they'll continue to want to ban them anyway.

No matter what studies come out showing that marijuana is no more dangerous than alcohol or that violent video games don't make kids more violent, Christians continue to want to ban those things. That's how you know it's based on morality. No secular argument or study will ever be enough to convince them otherwise--just as there's nothing you can bring forward to convince Muslim countries not to enforce Muslim morality by law.

read full comment
Image of Calvin Shield
Calvin Shield
on January 29, 2018 at 08:16:45 am

I think the point of all of this talk about liberty, is that if you admit that the bill of rights protects people's right to engage in gay sex, recreational drug use, play violent video games, listen to gangsta rap, etc. (or whatever was listed above), then people will be much more likely to accept that originalism isn't code word for theocracy or puritanism, but is a form of general statutory interpretation merely designed to prevent unjust and corrupt government.

You should present originalism not as a theory about the first and fourteenth amendments that still allows the government to outlaw anything they can get a majority to hate or fear, but present originalism as a theory about limited government, checks and balances, separation of powers, etc. that still allows culturally-diverse people to enjoy their hobbies and pursue their interests.

There's no reason you can't be an originalist who gets high while playing Call of Duty. In fact, preventing the government from enforcing morality could be the most elementary form of limited government--since most of the exceptions to the fourth and fifth amendment were to allow for the war on drugs and gun-control.

read full comment
Image of Teenagers can be originalists too
Teenagers can be originalists too
on January 29, 2018 at 13:30:25 pm

Any secular reason given for the law is always a mask for religious reasons, and that's true whether the "religion" recognizes itself as such or not. In other words, laws are always founded on either formal religious understandings or other essentially arbitrary ideological presuppositions (i.e. informal "religion.") Were the policies of the USSR ideologically neutral? Is there any ideologically neutral basis for recognizing any kind of human rights? Or any other kind of rights? Right and wrong, fair and unfair, justice... these are all inherently and unavoidably religious/ideological concerns, and they're inextricably tied to government policy decisions. Anyone claiming any neutral alternative is either fooling himself or intentionally trying to fool others.

read full comment
Image of Eric
on January 29, 2018 at 18:31:02 pm

Several people have voiced opinions that have absolutely nothing to do with what the Founders thought, so perhaps it is a good idea to get a clearer sense of what morality and virtue meant to the Founders. This way of thinking, rooted in particular assumptions about human nature, has been largely lost. (Please understand that I am not saying that you SHOULD think like the Founders. I am saying that, if I understand "originalism" correctly, originalists think that it is important to understand the Founders' intellectual/ideological world as we try to make sense of how to apply the Constitution to divisive moral/legal issues in our own day.)

1. Aristotle noted that human nature had a collective component, and saw government as the "perfection" (mature development) of human nature.

2. Cicero went beyond Aristotle, seeing an inherent tendency toward benevolence in human nature, a tendency that had to be developed or "perfected," manifesting as habitual benevolence. Of course the other virtues had to be developed or perfected, too -- and this was the path to HAPPINESS, the end or purpose of individual human existence.

3. Virtue meant the four cardinal virtues: wisdom, justice, courage and temperance. Benevolence was an essential feature of justice, the "mistress and queen of all the virtues."

4. Happiness also required being free of the "four disorders of the soul": distress, fear, lust and ecstasy.

5. Cicero's 18th-century followers like Hutcheson and Burlamaqui and Vattel -- routinely studied by the American founders -- also stressed good conscience as a fundamental element of happiness: You can't be happy if your conscience bothers you.

6. "Liberty" meant being able to conform to the Law of Nature (which commanded habitual benevolence and promotion of the general welfare). Being the slave to selfish passions, lusts, or addictions is inconsistent with the Founders' understanding of liberty. In the collective mind of the Founders, we don't have the unalienable right to do self-destructive things.

7. This ideology of perfection, virtue (especially benevolence) and happiness was ubiquitous in the nascent USA, and underlay discussion of natural rights. This ideology is what budding ministers and lawyers studied at Harvard, Yale, Princeton, etc.

Here is a quote from Vattel's "The Law of Nations," the leading treatise on international law back then, the handbook that the Founders turned to for instructions on how to declare independence and form an alliance among the colonies, which according to Benjamin Franklin was "continually in the hands of the members of our congress, now sitting":

"Every man is obliged to endeavour to obtain just ideas of God, to know his laws, his views with respect to his creatures, and the end for which they were created. Man, doubtless, owes the most pure love, the most profound respect to his Creator; and to keep alive these dispositions, and act in consequence of them, he should honour God in all his actions, and shew, by the most suitable means, the sentiments that fill his mind. This short explanation is sufficient to prove that man is essentially and necessarily free to make use of his own choice in matters of religion. His belief is not to be commanded; and what kind of worship must that be, which is produced by force! Worship consists in certain actions performed with an immediate view to the honour of God; there can then be no worship proper for any man, which he does not believe suitable to that end. The obligation of sincerely endeavouring to know God, of serving him, and adoring him from the bottom of the heart, being imposed on man by his very nature,—it is impossible that, by his engagements with society, he should have exonerated himself from that duty, or deprived himself of the liberty which is absolutely necessary for the performance of it. It must then be concluded, that liberty of conscience is a natural and inviolable right."

read full comment
Image of John Schmeeckle
John Schmeeckle

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.