AuthorFrohnen, Bruce P.

Why are Catholic hospitals now liable to suit by "transgender men" on whom they refuse, for religious reasons, to perform hysterectomies? (1) In part, no doubt, because courts misunderstand the nature and purpose of the Religion Clause in our First Amendment and, more generally, our Constitution and rule of law. More fundamentally, however, the current attack on religion in America stems from the loss of understanding of the nature of our constitutional order and its grounding in natural law. Our current legal crisis, often presented by lawyers as a matter of interpretation, (2) is rooted in metaphysical confusion and so cannot be resolved through interpretive reforms alone. As John Courtney Murray, S.J., pointed out in the middle of the last century, American constitutionalism is inextricably bound up with natural law understandings of the person and the social order. (3) These understandings, long maintained through a fruitful relationship between religious and secular authority, especially in the educational sphere, have been massively undermined by judicial rulings. (4) Committed to promoting an ideology of individual autonomy supported and enforced by centralized political power, judges have enforced a policy of strict separation between "church and state" that, over time, has effectively changed general understandings of the nature of the person and society. Far advanced, the deconstruction of traditional American presuppositions has made it increasingly difficult for either judges or laymen to recognize, let alone act in accordance with, the reality on which American constitutionalism relies. As Orestes Brownson argued, the written Constitution is made real by an unwritten constitution of customs, beliefs, and practices, in essence the culture of the people as they live out their understanding of the person and the requirements for a good life. (5) Americans have lost the common culture of our constitutional order, leaving our ability to make sense of the Constitution's (and other laws') primary goals and presuppositions, highly if not fatally, limited.


    For decades now, "textualists" and "originalists" have claimed that their interpretive methods must form the core of any attempt to save the Constitution from incoherence and the American republic from a breakdown of the rule of law. (6) Often identified with political conservatism, textualists and originalists (7) seek to further democratic accountability and the rule of law by reviving adherence to the Constitution's text-based limitations on the power of actors within branches of government as well as federal powers and individual rights in the making of legal rules. (8) To accomplish such goals, the argument goes, the bench must be repopulated by judges who will enforce the law and the Constitution as written, rather than impose their own political views. (9) This may be seen as an attempt to displace the currently dominant theory of a "living constitution" and a "purposivist" mode of interpretation that involves judges' divining the abstract purposes of laws and constitutional provisions, then deciding for themselves how the law should be formulated to serve those ends. (10)

    Before proceeding to argue that all forms of originalism are insufficient, by themselves, to reverse the trend toward constitutional delegitimation and social transformation, I first should point out that important distinctions exist within the movement. As Jesse Merriam has argued, the older, intent-based originalism of figures such as Raoul Berger, Robert Bork, and Antonin Scalia have been pushed into the background by a newer, more openly libertarian version claiming "original public meaning" as the proper guide to interpretation. (11) This newer "originalism," championed by figures such as Randy Barnett, has made law professors and courts (as opposed to historical analysis or the public will) the central sources of "original public meaning." The result is a theory (and ethic) of "engagement" that rejects "old originalism's" emphasis on judicial restraint in favor of reconstruction of precedents and texts to make them fit the needs of libertarian ideology. The Fourteenth Amendment in particular is transformed from a narrow grant of authority for specified purposes to a broad grant of power properly aimed at freeing individuals from various forms of tyranny. (12) Like Merriam, one might simply dismiss the "new" originalism as a non-originalism, thus preserving adherence to a kind of originalism necessary to preserve limited constitutional government. (13) But my argument, here, is that originalism always will devolve into "new" originalism of one form or another in hard cases because it does not contain within itself the means to restrain its adherents from seeking to wield the whip of judicial power in the name of (their vision of) justice. The reason for this is simple: no interpretive method can continually motivate its practitioners to come to legal answers with which they fundamentally disagree. (14) Over time, the process will lose legitimacy unless the interpreter comes to agree with the fundamental principles underlying the answers provided in the text. Thus, the only "true" originalist, over time, will be the one who, in general terms, shares the basic understandings underlying the texts he interprets.

    At several points over decades of interpretive conflict, there has been a majority on the Supreme Court made up of Justices appointed by Presidents insisting that their goal is textualist, originalist judicial interpretivism; the results have been, to say the least, disappointing. (15) The supreme Court itself continues to make law from the bench, twisting statutory and constitutional text to mean what is convenient for given policy ends. (16) Religious believers and Catholics in particular have reason to be concerned about this development because so much of the activist courts' jurisprudence undermines religious practice and family integrity, (17) and because the reason for this continuing failure of imagination is rooted in hostility to the metaphysical understanding at the heart of Catholic social Thought, namely natural law. (18) Textualism and originalism have failed because they lack metaphysical content and they lack metaphysical content because they are practiced today in ignorance of the natural law and, not coincidentally, the cultural and philosophical assumptions that underlie the American constitutional order. (19)

    The promise of textualism and originalism as originally understood was that neutral principles can bind down the government to the original meaning of the Constitution, taking policy considerations out of judicial decision making and producing simple, known laws in accordance with the democratic expectations of the people. (20) Yet all law is rooted in policy in at least the limited sense that it relies on common assumptions concerning what is right (and wrong) to pursue as persons, associations, and society. Moreover, all legal interpretations require the definition and application of key terms (e.g. "murder" or "person"). Such definitions emerge from a combination of tradition (e.g. cultures differ substantially in their definition of licit killings, including those in self-defense) and acceptance or rejection of objective truths such as each person's possession of human dignity as a being created in the image and likeness of God, as opposed, for example, to racial theories denying the humanity of members of some groups. (21)

    Unfortunately, textualist judges have joined their more overtly activist brethren in using judicial interpretation to further policy goals rooted in assumptions inconsistent with a natural law understanding of man and society. (22) Textualism and originalism have failed to rein in judicial lawmaking because they are practiced by judges whose legal prejudices have been shaped by the same vision of individual authenticity and centralized political power that spurred the anti-constitutional revolution of the mid-twentieth century. It has been pointed out that more recent "public meaning" forms of originalism leave massively more room for judicial reinterpretation than do more traditional forms of "original intent" jurisprudence. (23) But, while "new" public meaning originalism may be more overt in its rejection of the common, natural law mind at the core of American constitutionalism, the "neutral" principles of even traditional original intent jurisprudence, because they are mere rules of interpretation, can themselves provide no substantive context preventing reinterpretation according to a radically individualistic ideology that requires, on its own logic, the fundamental reconstruction of our Constitution and society; such context can exist only in the common mind, the traditions and practices of the people, which must be taken as true by judges if they are to do their job of interpreting rather than making law.


    One of the greatest shocks in recent years to those putting their faith in textualism was Supreme Court Justice Neil Gorsuch's majority opinion in Bostock v. Clayton County. (24) Gorsuch, hailed previously as a strict textualist, declared that Title VII of the Civil Rights Act of 1964 forbids employer discrimination against homosexual or transgender employees. Contemplated and debated for several years, homosexual and transgender rights against employment discrimination had not been enacted into law. But Gorsuch claimed to find them within Title VII's prohibition on discrimination "because of... sex." The issue in Bostock was whether homosexuality ("sexual orientation") and transgenderism ("sexual identity") are, for civil rights purposes, matters of sex akin to (and in effect superseding) the biological distinction between male and female. Gorsuch found that they are, arguing that "it is impossible to discriminate against a person for being homosexual or transgender...

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