One of the most enduring criticisms of originalism is that it lacks a sufficiently compelling moral justification. Scholars operating within the natural law tradition have been among the foremost critics of originalism’s morality, yet originalists have yet to offer a sufficient defense of originalism from within the natural law tradition that demonstrates that these critics are mistaken. That task has become more urgent in recent years due to Adrian Vermeule’s critique of originalism from within the natural law tradition, which has received greater attention than previous critiques. This Article is the first full-length response to the natural law critique of originalism as represented by Vermeule, presenting an affirmative argument for originalism from within the natural law tradition. Although other theorists have offered natural law justifications for originalism, they have not yet developed a theory of legitimate authority, which is essential both to the natural law tradition and to originalism. This Article fills that gap by grounding originalism in the legitimate authority of the people-as-sovereign.
In doing so, it draws upon and adapts centuries-old natural law arguments in favor of popular sovereignty that have rarely been mentioned in American law reviews and have never been presented as the basis for originalism. By creating a novel synthesis between this natural law theory of popular sovereignty and originalism, the Article offers new responses to longstanding objections to popular-sovereignty-based originalist theories, such as the exclusion of women and enslaved Black people from the ratification process.
Finally, having answered those criticisms, the Article shows that obeying the orig- inal meaning of the Constitution is necessary to preserve the legitimate authority of the people, which is essential to achieving the common good. This allows the Article to confront the core of the natural law critique: that originalism is incompatible with the natural law because it privileges the original meaning above the natural law when they are in conflict. The Article demonstrates that this critique overlooks the natural law limits on judicial authority that undergird the common good. By grounding originalism in a moral argument drawn from the natural law, this Article shows that, far from being a morally empty jurisprudence, originalism is justified by the moral authority of original meaning.
J. Joel Alicea,
The Moral Authority of Original Meaning,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol98/iss1/1