It is not clear what it will take for the Left to come up with a compelling response to originalism.
For a little over the past decade, scholarship utilizing virtue ethics’ insights has appeared in the contexts of private law, such as contract and property, legal ethics and, more recently still, constitutional law. Of particular note is Professor Larry Solum’s extensive and path-breaking work, culminating most recently in an edited collection titled Virtue Jurisprudence. This scholarly movement is a manifestation of the broader revival of virtue ethics in the philosophy academy occurring since at least 1958, when Elizabeth Anscombe published Modern Moral Philosophy.
Virtue ethics has a long and storied past that includes its two foundational figures, Aristotle and St. Thomas Aquinas. Its basic insight is that human ethical life is best understood as focusing on virtue and character, not rules or consequences. Virtue is an entrenched disposition of character that enables one to act, to live, and to be well. For instance, Ebenezer Scrooge was an unhappy miser because he lacked the virtue of charity and, once his character changed (through being shown the examples of other, virtuous people), he became happy.
Shortly before virtue ethics began impacting the legal academy, originalism was undergoing tremendous ferment in response to withering criticism lodged by nonoriginalist critics, such as Paul Brest. I’ll focus on three of the critics’ arguments: (1) the Constitution’s original intent was either impossible, in principle, to recover or, in practice, too difficult to ascertain; (2) the original intent that did exist and was discernable frequently “ran out” and left judges with little guidance; and (3) originalism’s dramatic inconsistency with nonoriginalist precedent raised the specter of harmful legal instability.
In response to these criticisms, originalists transformed originalism. First, originalists moved from an original intent focus to original meaning. Second, originalists acknowledged that the Constitution’s original meaning “ran out” and articulated the concept of constitutional construction. Third, originalists argued that originalism preserved at least some nonoriginalist precedent. (My claim here is not that all originalists adopted each of these moves.)
Each of these transformative changes to originalism opened originalism to judicial discretion. For example, a judge deciding which nonoriginalist precedents to overrule, limit, or follow will have, depending on the circumstance, a choice. Modern critics of this transformed originalism have not failed to pick up on this. The most prominent such challenge has come from Professors Thomas Colby and Peter Smith who argue that originalists have sacrificed originalism’s “raison d-etre”: “judicial constraint.”
In Originalism and the Aristotelian Tradition: Virtue’s Home in Originalism, I recently argued that virtue ethics provides originalists with the tools to parry Colby’s and Smith’s criticism. Instead of undermining originalism, I showed that this transformed-originalism is more descriptively accurate and normatively attractive once it takes on board virtue ethics’ insights. Indeed, it was this admission of judicial discretion that made originalism more porous to virtue ethics in the first place.
First, originalism’s incorporation of virtue ethics will give it greater explanatory power in at least four ways: (1) originalism will be more hospitable to and paint in a better light common practices; (2) originalism will be able to embrace the widespread and attractive conception of judging as a craft; (3) originalism will be able to emphasize the fact that constitutional interpretation is a human practice; and (4) originalism will better fit the Framers’ and Ratifiers’ plan of constitutional government, which embodied their virtue-infused assumptions. Let me focus on the last claim.
The Framers and Ratifiers lived in a world where virtue ethics was taken for granted. In late-eighteenth century America, education, literature, religion, political theory, and popular culture all generally assumed that some form of virtue ethics was correct (though perhaps not the sole mode of ethical analysis). Given this background, one would expect that both the underlying theory and original meaning of the Constitution would bear virtue’s imprint. James Madison reflected this milieu in Federalist 57: “[t]he aim of every political constitution is, or ought to be, first, to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous, whilst they continue to hold their public trust.” Hence, incorporating virtue ethics into originalism will enable it to better fit the Constitution’s background theory and original meaning.
Second, virtue ethics also makes originalist constitutional interpretation more normatively attractive. It does so by enabling judges, in each case, to give the Constitution’s original meaning its due, while also giving other factors—such as the practical workability of legal doctrine—their due, all in their proper proportion. I’ll use the context of nonoriginalist precedent to exemplify this.
Nonoriginalist precedent is precedent that incorrectly articulated and/or applied the Constitution’s original meaning. Some originalists have argued that federal judges are required by Article III to give constitutional precedent, including nonoriginalist precedent, significant respect. In particular, I have argued that a judge must utilize three factors to decide whether to overrule a nonoriginalist precedent: (1) the extent of the precedent’s deviation from the Constitution’s original meaning; (2) the harm to Rule of Law values caused by overruling the precedent; and (3) the extent to which the precedent creates a just social ordering. However, this analysis opens originalism to the criticism that originalism gives judges too much discretion.
Originalists can respond that a judge with the judicial virtues will appropriately evaluate the three factors and come to the correct conclusion—the conclusion that gives the Constitution’s original meaning its due regard while, at the same time, taking into account other important values. First, the virtuous judge will possess the virtue of theoretical wisdom, which will enable the judge to accurately ascertain the Constitution’s original meaning. For instance, when faced with a case that requires a judge to ascertain the Commerce Clause’s meaning, this virtue will permit the judge to perform the necessary research into the historical data. The judge will also review pertinent originalist precedent. Then, the judge will synthesize those legal materials into the authoritative constitutional meaning. At the same time, the judge will ascertain the meaning of the nonoriginalist precedent(s) in question.
Second, a judge with the virtue of justice-as-lawfulness has the disposition to give the Constitution’s original meaning, and binding originalist precedent, their due regard: to treat them as controlling. This means that the virtuous judge will be inclined to overrule nonoriginalist precedent. For example, Wickard v. Filburn is a nonoriginalist precedent because it incorrectly articulated the Commerce Clause’s meaning. Coming to this conclusion will incline the virtuous judge to overrule Wickard.
Third, the virtuous judge will utilize the virtue of practical wisdom to ascertain the extent of harm to Rule of Law values that the judge would cause if he overruled a nonoriginalist precedent. This will frequently be a difficult task. For instance, in evaluating whether to overrule (or limit) Wickard, the judge faces the daunting challenge of calculating the reliance interests built on Wickard.
Additionally, practical wisdom empowers a judge to articulate legal doctrine that will accurately connect the Constitution’s meaning to the facts presented by a case. In the context of nonoriginalist precedent, this will frequently be a challenging task if the judge determines not to overrule the precedent but, instead, to limit it. The judge will then have to modify existing (nonoriginalist) doctrine in a way that moves constitutional law toward the original meaning while, at the same time, ensuring that the doctrine is as coherent as possible. Practical wisdom gives the judge the ability to make the best of this difficult situation.
Fourth, in evaluating whether the nonoriginalist precedent in question creates a just ordering, a judge must utilize the virtue of justice-as-fairness. The virtue of justice-as-fairness enables the judge to determine whether the precedent otherwise—that is, despite its inconsistency with the original meaning—properly orders relations. Again, taking a constitutional challenge to Wickard as our example, the virtuous judge will decide whether the increased scope of Congress’ Commerce Clause authority increases or decreases just relationships. One place where this inquiry may have bite is the federal antidiscrimination laws that are premised on Wickard’s expansive reading of the Commerce Clause.
Each of the decisions made by a judge in the process of evaluating the continued vitality of a nonoriginalist precedent is augmented by a virtue. Having these virtues, by hypothesis, makes it more likely that these decisions are the best they can be. Therefore, although a judge has discretion, that discretion does not undermine the originalist project because the Constitution’s original meaning is given pride-of-place. Indeed, the virtuous judge’s discretion provides the opportunity to arrive at the best decision, all things considered.
Today’s originalism needs the virtues. Incorporating virtue ethics permits originalism to successfully navigate its transformation by maintaining the original meaning’s pride-of-place and harnessing judicial discretion to serve the common good.