Originalism: A Catholic Constitutionalism

Originalism proposes that the values of the Constitution are unchanging, and developments in constitutional interpretation over the years should be based on courts’ application of those original values to the case law.

Believe it or not, there’s a Catholic way to read the Constitution. Considered the gold standard of constitutional interpretation, originalism is a philosophy that has been adopted by Supreme Court justices like Amy Coney Barrett, Samuel Alito, and Clarence Thomas (all Catholics, by the way). Originalism proposes that the values of the Constitution are unchanging, and developments in constitutional interpretation over the years should be based on courts’ application of those original values to the case law.

The easiest way to understand originalism is to understand what it isn’t. There are two major interpretations of the Constitution that oppose originalism. The first is living constitutionalism, which proposes that the Constitution is a living document that changes with the times and must be re-interpreted by courts (instead of amended by Congress, as the document itself indicates) to fit legal outcomes to the values of the day. The second is textualism, as made famous by the late Justice Antonin Scalia, which involves reading a law or the Constitution as it is written, without trying to infer original meaning or intent—in other words, relying solely on the text. 

Living constitutionalism is essentially rooted in modernism—the belief that moral values can and ought to change with the times. Progressives use this theory to read things into the Constitution that clearly don’t belong in there, like gay marriage and abortion. Textualism falls into a quasi-sola scriptura tendency—subjective interpretations of the text, without bringing history, tradition, or any extrinsic evidence to bear on the meaning of a certain word or provision. Originalism, in contrast to the other two philosophies, is more akin to how the magisterium of the Church functions—doctrine develops in ways that appear new but are, in fact, continuations of “history and tradition,” an American constitutional allegory to the deposit of faith, which is rooted in Sacred Scripture and Divine Tradition.

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Originalism, unlike the modernist living constitutionalism or Protestantish textualism, is the most Catholic of the three. Procedurally, it finds common ground with the Catholic Faith when it encourages us to look back to the context of the founding (and centuries of English common law) to determine what the Constitution means, instead of looking to the most common beliefs of our day or relying on our own subjective textual interpretation. It looks to the great tree of Western legal tradition rather than planting a sapling in its place. 

In terms of substantive morality, originalism also complies best with Catholicism. Gay marriage, gender transitioning (for adults or minors), and even no-fault divorce or pornography would have been anathema to the Framers of the Constitution, as well as most people who lived in the West between the years 313 and 1960. Therefore, reaching back to see what the Framers would have thought about these issues brings us to results that largely conform with the Catholic Faith.

Though they closely mirror one another—perhaps intentionally so—originalism and the magisterium of the Church are not the same thing. Putting aside the obvious distinction between secular law and religious authority, the main difference is infallibility. When the Church—specifically the pope or a council of bishops—teaches on matters of faith and morals, she does so infallibly. Despite attempts by many within the Church to do so, there’s no walking back doctrine or insisting that a mistake was made along the way. 

Originalism, on the other hand, acknowledges that the Supreme Court sometimes gets things wrong, and thus decisions can be overturned as erroneous. Further, the Constitution provides an amendment process, which can change the ultimate meaning of the document, in some cases rendering past decisions and interpretations null. 

The lack of infallibility in the Constitution itself and in the Court’s interpretation of it is, of course, a feature and not a bug. Thankfully, our founding document—signed by Freemasons—isn’t the Bible, and Chief Justice John Roberts isn’t the pope. However, it presents a big problem for conservatives, especially Catholics, as we struggle to understand originalism’s role in bad Supreme Court decisions. 

Many on the Right claim that originalism is to blame for a lot of adverse Court decisions, simply because of the political leanings of the justices who issued them. Chief among these examples is Justice Neil Gorsuch, often described as a libertarian originalist, reading gender identity into Title IX in Bostock v. Clayton County, Georgia. However, it’s inaccurate to categorize bad decisions that fly in the face of the original meaning of the Constitution as originalist. Though they may be labeled as such, they’re more akin to textualist or living constitutionalist interpretations. 

A living constitutionalist would easily arrive at a decision that gender identity belongs in Title IX simply because it ought to be in there, perhaps relying on vague ideals such as equality under the law to do the legal heavy lifting. Their Catholic modernist counterparts offer a similar claim that the Church should bless same-sex unions under the ideal of loving our neighbor. Same game, different chess pieces. 

Textualism also produces such brain-numbing results. A textualist (which I would argue Gorsuch actually is) would say that the plain meaning of a term like “sex”—putting aside the fact that it’s been redefined more in the past ten years than in the previous two thousand—includes gender identity because it concerns sex. This conclusion has no real application of history and tradition, nor any consideration of how much Thomas Jefferson or James Madison would be rolling in their graves at such a result. In this scenario, think of the poor sola scriptura Protestant who insists that gay marriage is biblical based on some convoluted understanding of the word “homosexual” in 1 Timothy. Such an approach should be kept far away from our Constitution.

Some Catholics have responded to the so-called failings of originalism by coming up with fledgling theories of constitutional interpretation. Harvard Law professor Adrian Vermeule’s “common good constitutionalism” serves as one example. The main idea of this theory is that the Constitution’s original meaning doesn’t go far enough to further the common good, and, instead, we ought to bring Catholic ideas that conflict with the Constitution into our understanding of the document.

This framework is tempting for faithful Catholics who are disenchanted with classical liberalism and want to see a public square ordered to truth, beauty, and goodness. Some of his points are undoubtedly true: our Constitution should be (and, when properly understood, already is) concerned with preserving the common good. However, we should reject Vermeule’s central assumption that the natural law isn’t already in the Constitution or that the document conflicts with the Catholic Faith. As Vermeule admits, it’s a stretch to characterize the Framers as modern-day libertarians. Doing so treats the founding era like a choose-your-own-adventure novel, substantially weakening originalist arguments. 

Further, the Americanist heresy—our country’s tendency to absolutize values such as free speech—is far from imbedded in an originalist understanding of the Constitution. Stringent obscenity laws, for instance, were a staple of common law at the time of the founding and were enforced until the ’70s. We’re only one good originalist decision away from bringing them back.

In addition, some of Vermeule’s ideas should startle Catholics. As he puts it, 

In this time of global pandemic…it has become clear that a just governing order must have ample power to cope with large-scale crises of public health and well-being—reading “health” in many senses, not only literal and physical but also metaphorical and social. 

After almost two years of watching people lose their jobs over vaccine mandates, no thanks.

Alternatives like common good constitutionalism fail because they already exist. They’re called living constitutionalism and they work just like modernism, unmooring our legal tradition from the founding era as well as a long line of English common law. In practice, this method of constitutional interpretation would result in confusing, contradictory decisions based on subjective preference rather than long-established principle. An originalist understanding of the Constitution is simply better equipped to face off against progressive legal arguments because it has more to offer than a simple tit for tat of determining what the law should be rather than what the law is

If there are doubts about what originalism can accomplish, Justice Alito’s spectacular Dobbs opinion should put them to rest. We don’t need to treat the Constitution as an inconveniently worded obstacle on one hand or reduce it to the text itself on the other in order to reorder the public square to Catholic values. That goal is easily accomplished by looking to the original meaning of the Framers, instead of the meaning that textualists and living-constitutionalists-in-disguise have read into the document.

The choice for lawyers, professors, scholars, and judges should be an easy one. Originalism is the most Catholic way of looking at the Constitution. As such, it should continue to serve as the dominant legal theory in American constitutional law.

[Image Credit: Shutterstock]

  • Patrick J. Moran

    Patrick J. Moran is a Catholic attorney and writer. He received his JD from the University of Florida, and a BA in Political Science from University at Albany, SUNY.

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