THE MORAL AUTHORITY OF ORIGINAL MEANING.

• Author: Alicea, J. Joel

INTRODUCTION 2 I. MORAL FRAMEWORKS IN CONSTITUTIONAL THEORY 10 A. Moral Arguments in Constitutional Theory 10 B. Selecting a Moral Framework 13 II. THE MORAL BASIS FOR POLITICAL AUTHORITY AND POPULAR SOVEREIGNTY 16 A. The Argument for Political Authority 16 B. The Argument for Popular Sovereignty 24 C. Responding to Common Objections to Popular Sovereignty 33 1. Unanimous Consent and the Original Exclusions 33 2. The Dead Hand of the Past 41 III. THE MORAL AUTHORITY OF ORIGINAL MEANING 43 A. The Obligation to Obey the Original Meaning of the Constitution 44 B. Conflicts Between Original Meaning and Natural Law 52 CONCLUSION 60 INTRODUCTION

One of the most enduring criticisms of originalism since its modern emergence in the 1970s is that it lacks a sufficiently compelling moral justification. This criticism often takes the form of questions like why should we follow the original meaning of the Constitution if it sometimes leads to unjust outcomes? (1) Why should we follow the original meaning of the Constitution if it binds those of us living today to the views of those long-since dead? (2) These are deep challenges to originalism's moral foundations, and they have come from scholars representing various philosophical traditions.

Prominent among these moral critics of originalism are scholars of the natural law tradition. (3) Indeed, of the moral critiques of originalism, the natural law critique has received far more attention in recent years due to the work of Adrian Vermeule. Although Vermeule's views are complex, the core of his critique is that, because originalism fails to "guarantee[]" that "the original understanding will necessarily or even predictably track the common good"--as the term "common good" is understood in the natural law tradition--originalism is morally bankrupt. (4) Vermeule is thus focused, among other things, (5) on the "resulting outputs" of an originalist methodology, and because those outputs are constrained by historical inquiry and might not align with the natural law, originalism is--in his view--incompatible with the natural law tradition. (6) Or, to put the point as Hadley Arkes did in levelling his own version of a natural law critique, originalism "is a morally empty jurisprudence." (7)

Vermeule's critique has received greater attention than previous natural law critiques of originalism because it has arrived at a time of intellectual tumult among political and legal conservatives, when there is a greater openness to rejecting ideas that have been standard features of American conservatism for decades. (8) Because originalism is predominantly embraced by conservatives, (9) and because Vermeule's alternative theory promises to reach many results that are appealing to many conservatives, (10) Vermeule's critique has found a greater audience than have previous natural law criticisms of originalism that were made during less volatile moments on the right. (11)

That volatility is due, in part, to the fact that originalists have not yet developed a persuasive response to natural law critiques of originalism, which has left originalism vulnerable to arguments like Vermeule's. Most originalists have never been particularly comfortable making moral arguments. (12) Modern originalism began as a reaction against the Warren and Burger Courts, (13) which originalists criticized for having made decisions based on "fundamental value choices" rather than "neutral principles." (14) Thus, while Judge Robert Bork defended originalism against an earlier wave of natural law criticisms in the 1990s, (15) he never developed a moral foundation for originalism based on the natural law tradition. The same was true of Justice Antonin Scalia, who endorsed the natural law tradition (16) but was so concerned about abuses of judicial power that he was wary of appeals to natural law in constitutional theory. (17)

The most robust efforts at defending originalism from a natural law perspective have come from Jeffrey Pojanowski and Kevin Walsh on the one hand (18) and Lee Strang on the other. (19) Both contributions are of great importance, but they are less focused on trying to show why the natural law criticisms of originalism are mistaken. Moreover, they do not develop theories of legitimate authority, which (as I will show) are essential to justifying originalism from within the natural law tradition. Pojanowski and Walsh, for example, ground their originalism in the Constitution as a form of stipulated positive law that has been promulgated by "the people as the constituent authority" to definitively resolve social coordination problems, (20) but at least thus far, they have neither offered an account of why the people are the constituent authority nor addressed common objections to popular sovereignty. Strang offers a brief argument (very similar to the one offered by John Finnis) about how to identify who exercises legitimate authority, (21) but it is not his focus.

But the natural law critics of originalism are mistaken, at least insofar as they (like Vermeule) posit an incompatibility between originalism and the natural law tradition. Taking Vermeule as representative of the natural law critique of originalism, (22) this Article presents the first full-length response to Vermeule by offering a natural law justification for originalism grounded in the legitimate authority of the people-assovereign, authority that is necessary for achieving the common good. In doing so, it draws upon arguments in favor of popular sovereignty developed by medieval (23) and Renaissance (24) natural law theorists that were later refined by their twentieth-century (25) successors. Surprisingly, these arguments--though commonly debated in political philosophy during the twentieth century (26)--have rarely been cited in American law reviews, (27) and they have never been presented as the basis for originalism. American constitutional theorists tend to equate the concept of popular sovereignty with Enlightenment-era social contract theories, all of which have been subjected to devastating criticism. (28) Yet, there is an older, sounder philosophical tradition of popular sovereignty based on the natural law, which differs significantly from the way we often think about popular sovereignty. (29) This Article breaks new ground in presenting and adapting the natural law conception of popular sovereignty as the justification for originalism.

That is the core of my argument, but I begin in Section LA by explaining briefly why constitutional theories--including originalism--need to make moral arguments. Constitutional theorists believe that jurists and other actors in our system ought to follow their prescribed methodologies (such as originalism) for adjudicating constitutional disputes, and that "ought" must ultimately rest on a normative foundation. (30) Specifically, it must rest on an argument in favor of the moral legitimacy of the Constitution--the Constitution's ability to bind us in conscience--because why the Constitution is morally legitimate influences how to adjudicate disputes under it. (31)

Once we acknowledge that a moral argument in favor of the Constitution's legitimacy is necessary to support a constitutional methodology like originalism, we must then decide which moral framework to use in making that argument. As I will explain in Section LB, I will offer arguments from within the natural law tradition. The foremost representative of that tradition is, of course, Thomas Aquinas, and my analysis will use his criteria for assessing whether a law is morally binding. There are two criteria: a law is morally binding only insofar as it is both (1) substantively consistent with the natural law and (2) promulgated by a legitimate authority. (32)

My focus in this Article will be on the latter requirement: legitimate authority. I will bracket whether the Constitution is, as a general matter, sufficiently just to be morally binding and assume that it is for purposes of my analysis. (33) That is not to assume that all aspects of the Constitution are just; I will address unjust applications of the Constitution (as originally understood) in Section III.B. But how to address individual, unjust applications of a generally just constitution is a different question from how to address a fundamentally unjust constitution, which should be rejected in its entirety.

My point, rather, is to focus on the implications of Aquinas's criterion of legitimate authority for constitutional adjudication. Nonoriginalist natural law theorists have tended to underappreciate those implications and the significance of the concept of authority in the natural law tradition. Vermeule, for instance, acknowledges the importance of legitimate authority, (34) but he provides no account of who the legitimate authority that promulgated the Constitution was or what implications that has for constitutional adjudication. (35) Focusing on authority will set up the argument at the end of the Article for why, even when the natural law and the original meaning of the Constitution conflict, judges cannot set aside the original meaning. (36) As will become clear in Section III.B, my argument will not be that judges must participate in the enforcement of unjust laws; it will be that they cannot displace unjust laws with the natural law without doing grave harm to the common good.

Part II presents my argument for the moral legitimacy of political authority in general and of the Constitution in particular. Section II.A provides a traditional natural law argument for political authority as the logical entailment of human beings living in society. (37) Human beings are social animals; they can only flourish in society. (38) But society cannot flourish without authority, a necessary condition for the achievement of the common good. (39) The phrase "the common good"--like the concept of "the natural law"--is very much contested, but political authority is...