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.
- 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?
- 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.
- 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?
- 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?
- 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.}
- 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.
- 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.
- 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.
- Appeal to natural law may be described and understood as an attempt to impose Catholic beliefs.
- Is the use of natural law an alternative to constitutional originalism or just a different kind of constitutional originalism?
