Justice Alito’s ten questions or concerns about the Project on Constitutional Originalism and the Catholic Intellectual Tradition

On September 27, 2022, United States Supreme Court Associate Justice Samuel Alito delivered the inaugural lecture of the Project on Constitutional Originalism and the Catholic Intellectual Tradition. This is a Project of the Columbus School of Law, The Catholic University of America, housed initially in Catholic Law’s Center for Law and the Human Person. Its purpose is to advance the study and understanding of American constitutionalism within the light provided by the Catholic intellectual tradition.

Justice Alito described himself as a a stage-setter, someone whose job was to set the stage for the actors in the show that was to follow—namely, the carrying out of the Project. To this end, he offered ten questions or concerns or clusters of questions and concerns. He did not offer explicit answers to the questions or specifically endorse any of the concerns as valid and grave. But his identification of these questions or concerns shows their importance for anyone interested in the relationship, in particular, of American constitutional originalism and the Catholic intellectual tradition.

Justice Alito’s speech was not broadcast publicly nor has the transcript been made publicly available. I was there for it, though, and took notes on an index card. The summary that follows is drawn from my sketchy notes.

  1. What is constitutional originalism? There are many varieties, such as original public meaning originalism and original-law originalism. Is constitutional originalism a specifically American phenomenon? Is constitutional originalism applicable in other countries? With respect to state constitutions? Is constitutional originalism only for federal judges? Only certain federal judges, such as on the Supreme Court? All government officials?
  2. A paradox of constitutional originalism is that it fostered constitutional theory by the challenges it made, but is itself undertheorized. The modern theory of originalism arose in the 1970s as a response to the Warren Court and it’s concern with “the just result” in cases. Robert Bork’s 1971 article “Neutral Principles and Some First Amendment Problems” was an important catalyst in pushing for constitutional theory.
  3. Is it really true that “we are all originalists now”? This is something that has been said. But is Steven Calabresi an originalist when he presents an originalist argument for same-sex marriage? Justice Elena Kagan?
  4. How much can history tell us? One clear attraction of originalism appeared to be its capacity for identifying limits. But it is unclear how or that this works with respect to the use of history. For example, is “trespass to chattels” as used in the Fourth Amendment context helpful? Or is an originalist inquiry helpful in a case about First Amendment limits on state law restricting the sale of video violent games to minors, as in Brown v. Entertainment Merchants Association?
  5. Does constitutional originalism have an adequate response to the Bork & Beethoven problem? This question comes from a 1990 commentary authored by Judge Richard Posner that juxtaposed Commentary’s simultaneous running of a book review of three books about Robert Bork’s originalism and defeated judicial nomination, with a criticism of the authentic performance movement as applied to Beethoven. {KW: My notes and recollection here are limited, but Justice Alito offered reflections on the telos (end or purpose) of musical performance and judicial performance, I believe. In any event, it is clear that Posner’s criticisms made an impression on Alito to the point that they still served as a reference point in this speech of his over thirty years later.}
  6. What do we mean by the Catholic Intellectual Tradition? Is this Project about juxtaposing a narrow slice of that tradition with a specific constitution as interpreted by specific constitutional interpreters? What kind of judges, for example, did St. Thomas Aquinas have in mind? The role of judges in the thirteenth century was probably not the same as judges now in the United States, for example.
  7. The American Founders did not rely on Catholic Social Thought. Many think the American constitutional order has foundations that are entirely secular. This seems to have been Bork’s view in The Tempting of America, and Justice Scalia’s view as well.
  8.  Any appeal to natural law will be misunderstood. American legal thought is pragmatic and rooted in liberalism. The interpretation of a legal text is not the same thing as ascertaining the natural law. It sounds strange to mix the identification of traditional rights of Englishmen with natural inalienable rights. Closer relationships with the natural law might be found in the 1947 UN Declaration on Human Rights or maybe some ALI Restatements.
  9. Appeal to natural law may be described and understood as an attempt to impose Catholic beliefs.
  10. Is the use of natural law an alternative to constitutional originalism or just a different kind of constitutional originalism?

adjudication-related considerations in Sheetz v. El Dorado

The Supreme Court’s recent decision in Sheetz v. El Dorado County (2024) features a unanimous opinion for the Court by Justice Barrett and separate concurring opinions by three other Justices (Sotomayor joined by Jackson; Gorsuch solo; and Kavanaugh joined by Kagan and Jackson). These separate opinions address themselves in different ways to the narrow scope of what was decided in the opinion for the Court.

The question presented was whether conditions imposed on building permits are exempt from regulatory takings scrutiny because they are imposed pursuant to legislation rather than administratively. The Court answers this question “no.”

Sotomayor (joined by Jackson) wrote separately to note that there is an antecedent question, one not addressed by the Court, which is “whether the permit condition would be a compensable taking if imposed outside the permitting context.”

Gorsuch wrote separately both to note that the Court’s opinion did not address another question and also to suggest that this question had an easy answer. This was the question “whether the Nollan/Dolan test [i.e. the test that governs the Takings Clause inquiry in this context] operates differently when an alleged taking affects a ‘class of properties’ rather than ‘a particular development.’” The easy answer to this question, implied Gorsuch, was “no.”

If this question was so easy, why didn’t the Court address it? It appears that at least three Justices have a different view than Gorsuch. Kavanaugh (joined by Kagan and Jackson) concurred “to underscore that the Court has not previously decided—and today explicitly declines to decide—whether ‘a permit condition imposed on a class of properties must be tailored with the same degree of specificity as a permit condition that targets a particular development.’” The reason to underscore the limited nature of the Court’s decision, presumably, is to prevent others from reading that opinion to have resolved the issue.

From this brief description of the scope of the opinions, the question naturally arises how the Court decided to calibrate the breadth or narrowness of this opinion. The answer to this question is not something that one tries to answer as a matter of constitutional interpretation. The answer turns instead on the nature of the judicial function within the particular place in the judicial hierarchy occupied by the Supreme Court of the United States, together with a justice’s understanding of how best to carry out that function as a single individual on a multimember appellate court with jurisdiction that is both limited and discretionary. To the extent that these kinds of understanding are informed by a distinctive theory, that would be a theory of adjudication rather than a theory of interpretation or law.

Pope Francis’s Remarks to International Federation of Catholic Universities

On January 19, 2024, Pope Francis was scheduled to deliver “a lengthy address” to the International Federation of Catholic Universities. Because he was a “bit short of breath,” he instead got right to the point of what he was going to say and then let his prepared text speak for itself. Here’s what he said viva voce:

I was planning to deliver a lengthy address, but I am a bit short of breath; as you can see, this cold is not going away! I am giving you the text so that you can read it for yourselves. I thank all of you for this meeting and for all the good that our Catholic universities do by communicating knowledge, the word of God and an authentic humanism. Never tire of persevering in the splendid mission of Catholic universities. It is not their confessional status that gives them their identity: that is one aspect, but not the only one. It is perhaps that clear humanism which makes people realize that human beings have values and that these need to be respected. This is perhaps the finest and greatest thing about your universities. Thank you very much.