81 La. L. Rev. 1317 (2021)
Conservative constitutionalism is committed to "originalism," that is, to interpreting the Constitution according to its original public understanding. This defining commitment of constitutional interpretation is sound. For decades, however, constitutional conservatives have diluted it with a methodology of restraint, a normative approach to the judicial task marked by an overriding aversion to critical moral reasoning. In any event, the methodology eclipsed originalism and the partnership with moral truth that originalism actually entails. Conservative constitutionalism is presently a melange of mostly unsound arguments against the worst depredations of Casey's Mystery Passage.
The reason for the methodological moral reticence is easy to see. It came into being as an understandable strategy to halt the Warren Court's judicial activism. The conservative diagnosis was simple, and largely correct: judicial philosophizing not called for by the constitutional text or by a sound interpretation of it lay at the root of these judicial excesses. The treatment that conservatives prescribed hit the mark they sighted. Where resort to moral reasoning seemed inescapable, conservatives turned to some species of conventional moral belief, usually to what some group thinks, or once thought. Conservative constitutionalists have been committed to an "objectivity" wherein facts about what some believe to be morally sound folded into a regimen of restricted legal reasoning/ram text, history, structure, and precedent.
This conservative constitutionalism is well-suited to damage control whenever legal elites are in thrall to unsound moral and political philosophies. Conservative constitutionalism can even stymie for a time the introduction of new mistaken premises. But now, more than 50 years into the revolution, contemporary constitutional conservatism is incapable of wresting control of the law back/ram the regime-changing project of autonomous self-definition. We have passed a tipping point where damage control amounts to no more than a slow-walking surrender.
Conservative constitutionalists need only choose originalism, which will lead them to recognize the necessity for strategic resort to critically justified metaphysical and moral truths, as the Constitution directs. In fact, the contemporary judge can be faithful to the Founders only by sometimes relying on moral and metaphysical truths that lie beyond the Constitution. These truths include, crucially, answers to such foundational questions as: When do persons begin? What is religion? Which propositions about divine matters are answerable by use of unaided human reason? What is the meaning of that "marriage" that Supreme Court cases for over a century have spoken of, when it declares that everyone has a "fundamental right to marry"?
The truth about constitutional law is that, sometimes, the problem with an errant Supreme Court opinion is not that it relies on philosophy, but that it relies upon bad philosophy. Then the conscientious judge is obliged to replace bad philosophy with good philosophy. And the linchpin of that good philosophy is the "liberty," not of self-creation ex nihilo, but of self-constitution in a morally ordered universe.
Gerard V. Bradley,
Moral Truth and Constitutional Conservatism,
81 La. L. Rev. 1317 (2021).
Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/1484