The first public event of the Project on Constitutional Originalism and the Catholic Intellectual Tradition took place a few weeks ago at the American Enterprise Institute, our co-sponsor for the event. This was a panel discussion on “Natural Law and Original Meaning.” The panel consisted of Professor Sherif Girgis (University of Notre Dame School of Law), Professor Lee Strang (University of Toledo School of Law), and me. CIT Co-Director Professor Joel Alicea moderated. A recording is available on YouTube. The written remarks that formed the basis of my opening statement are presented below.
Opening Remarks
CIT/AEI, 9/1/22, Natural Law and Original Meaning
Kevin C. Walsh
The title of our panel is Natural Law and Original Meaning. A more precise title for my perspective might be something like Thomistic Juridical Realism, Four-Cause American Constitutionalism, and Original-Law Originalism.
Justice, Law, and Jurisdiction in Thomistic Juridical Realism
I begin with some working understandings of three key concepts:justice, law and jurisdiction. For all of these, I am drawing on St. Thomas Aquinas as integrating Greek, Roman, and Biblical understandings. That is why this account is Thomistic. The primary concept at work is justice, and a basic claim is that justice is real. The account I will sketch can therefore be understood as Thomistic Juridical Realism.
Let us begin with justice. For St. Thomas Aquinas, justice is a virtue of the will: Justice is the constant and perpetual will to render to each his due.
An important feature of this understanding is that each’s due, his right or ius, is the object of an act of justice. The characteristic act of justice is the rendering to another the just thing that is owed.
How do we identify the just thing that is owed? Justice itself does not do that. Justice is always in second place. Ordering comes first. Justice is the will to give to each his due, but justice does not itself account for what is due. Justice presupposes some prior ordering of what each is entitled to as his or her own. It is that prior ordering that makes something due. This is where law comes into the picture. For law can supply that prior ordering.
With justice as the first concept we need to begin with a working understanding of, the second is law. The Thomistic understanding of law has four features: (1) an ordinance of reason, (2) for the common good, (3) made by one with competent authority, and (4) promulgated. All four features are essential for identifying something as law; each contributes something distinctive to the law-ness of any given law.
For a preview of what is coming when we are done with conceptual mapping: A powerful way of evaluating the adequacy of an account of law is by reference to these four causes or essential elements of law. To pick on a crude dichotomy in the area of statutory interpretation, for example, we might polarize what should really be a continuum and sharply distinguish textualism from purposivism. In this polarity, the textualist view risks overemphasizing the elements of authority and promulgation. The purposivist view risks overemphasizing the elements of ordinance of reason and the common good. Four-cause legal analysis makes us attend to all four.
Back to our conceptual mapping. We started with justice and then moved to law. This step was necessary because justice is the virtue of a constant and perpetual will to render to each his due, but we need some prior ordering such as law to be able to identify what the just thing due is. A prior ordering in law supplies content enabling identification of that just thing to be rendered in an act of justice.
How is it that a particular person or group of persons ends up confronted with questions about the administration of justice that are to be resolved by reference to a particular body of law? This brings us to our third key concept: jurisdiction.
Jurisdiction is the public authority to say what the law is for a community. St. Thomas discusses this both with respect to the public authority to make law for a community generally and the public authority to interpret and apply law in some particular case. In the judicial context, St. Thomas links this public authority with the power to enter binding judgment.
Four-Cause American Constitutionalism
With working understandings of justice, law, and jurisdiction in place as elements of Thomistic Juridical Realism, we find ourselves ready to apply four-cause legal analysis to American constitutionalism.
This is basically what my friend and fellow law professor, Jeff Pojanowski, did in a law review article we published in the Georgetown Law Journal five years ago called Enduring Originalism. The central section of that paper is called “Classical Natural Law Foundations of Positive Originalism.” That section has three parts. First is “Classical Natural Law Jurisprudence,” in which we address the four causes of law and interpretive implications for constitutions generally. Second is “Classical Natural Law Foundations of the Constitution of the United States,” in which we look to our actual constitutional history. This part begins with the Declaration of Independence and continues through the Articles of Confederation _and Perpetual Union_, the Constitution of the United States ratified by “We the People of the United States,” the commentaries of Publius and Brutus on interpretation, precedent, and liquidation, and then on to Marbury v. Madison and several early constitutional commentaries. The third section focuses more on the present, which we describe as “constitutional eclecticism with constitutional law as customary law.”
There is too much to go into here in my opening ten minutes from that five-year-old paper, but perhaps a spark-notes summary mapping the four causes of law onto the Preamble might spark some interest in exploring the details of our approach.
- Ordinance of Reason: The Constitution holds itself out as an ordinance of reason. It says, “We the People of the United States … do ordain and establish this Constitution.” Listen for those verbs, “ordain and establish” which is to order and to set down firmly and authoritatively for the future. This is an ordinance of reason, not sheer volition, because the intent accompanying this act of ordination and establishment is to bring about intelligible goods by means of the Constitution as a legal instrument.
- For the Common Good: All of the ends specified in the Preamble are true common goods—more perfect union, justice, domestic tranquility, common defence, the general welfare, and the blessings of liberty (best understood as political liberty, to be self-governing).
- Made by One With Authority, or Care for the Community: “We the People of the United States” as a collective corporate unit is the subject that does the ordaining and establishing through the Constitution as a legal instrument.
- Promulgated: The written Constitution is the ratified Constitution; it is the legal instrument that holds itself out as the Supreme Law of the Land.
Three Key Features of Original-Law Originalism
What are the implications for constitutional law of these classical natural law jurisprudential foundations of this positive-law legal instrument, the Constitution of the United States?
In Enduring Originalism, Pojanowski and I sketched a version of original-law-ism, or original-law originalism. At the operational level, this approach bears many similarities to the approach advocated by Professors Stephen Sachs and William Baude, but unlike theirs is not jurisprudentially grounded in legal positivism. Under that approach, our constitutional law today is the original law of the Constitution together with any lawful changes since. As you can appreciate from this description, original-law originalism is an account of the lawfulness of constitutional law now grounded in continuity with the original law of the Constitution over time.
To conclude these opening remarks, there are three key features of original-law originalism to keep in mind. One is the significance of the origin of the Constitution in a collective act of ordination by “We the People of the United States” of a new system of federal government for the pursuit of certain common goods as legally ordained and established by this instrument of a written Constitution. A second key feature is the recognition of lawful change to the system of federal government thus ordained and established under that instrument. These changes can take the form not only of amendments, but also of authorized developments of doctrine. A third key feature is the continuity of that same system of federal government originally ordained and established, under the same legal instrument, over time. These three key features then, are lawful origin, lawful change, and lawful continuity.
Conclusion
All of this is very formal and very general, I understand. But the primacy of the speculative is nothing to shrink from. Perhaps in our discussion we can consider some of the potential implications of this outlook for the constitutional law of abortion, or the freedom of speech, or sovereign immunity, or personal jurisdiction. Or perhaps we can compare and contrast enduring originalism with the novel Dworkinian approach offered by Professor Adrian Vermeule in his book, Common Good Constitutionalism. That name nicely highlights one of law’s four essential causes.
