A longstanding criticism of originalism holds it to be morally defective because it does not ensure conformity between the law and justice, and even requires judges to act without regard to justice. Careless arguments from originalists sometimes inadvertently strengthen this criticism.
Adrian Vermeule has drawn new attention to this criticism, which has now inspired Joel Alicea to write this defense of originalism. Alicea argues that “the natural law both demands that positive law conform to the natural law and that judges respect the limits of their authority. And under the American system, that requires judges to adhere to the original meaning of the Constitution for the sake of the common good.”
A question Alicea does not take up is whether a judge’s performance of his duties may require him, on some or many occasions, to go beyond the text of the law and engage in moral reasoning. His point is that the people, in exercising their legitimate political authority, may reasonably establish a system of government that cabins the power of judges. Where a just regime has done that, as ours has, the judge in the vast majority of cases has a duty to obey the people’s sovereign command.
Alicea also does not take up Vermeule’s alternative to originalism, perhaps in part because the latter had not elaborated it when the former began his essay. I agree with Ed Whelan that Alicea’s essay has much of interest that transcends the context of a response to Vermeule. It is certainly more worth your time than anything you will hear on the first day of Judge Jackson’s confirmation hearing.
Update: While Vermeule has blocked me on Twitter, meaning I can’t read his posts, I’m told he is complaining there that this post didn’t include a link to his new book. Which is probably because I didn’t mention his book at all. But I suppose authors can’t be expected to be reasonable in the quest for publicity. Anyway, here’s the link.
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