The Debate We Should Be Having about Catholicism and the Constitution

W e are living in a time of confusion about, and division over, the nature and future of American constitutionalism. Much of this tumult is the result of appointments to the Supreme Court. Legal conservatives have succeeded in appointing a majority of justices committed to originalism, which holds that government officials, including federal judges, are bound by the meaning that constitutional provisions had when they were enacted. Since originalism started gaining ground in law and politics in the 1980s, scholars and activists on the left have argued that this approach to judging perpetuates injustices rooted in the Founding. More recently, some Catholic scholars and activists on the right have also attacked originalism, arguing that it has failed to halt progressive legal victories on contested social and political questions and lacks the moral principles to do so. Despite the significant differences among these critics of originalism, they agree on at least one thing: Originalism is a morally empty theory that cannot justify the results it produces in important and controversial cases.

This debate is part of a more general unease about the Constitution. Calls among some on the left to abolish the Electoral College and pack the Supreme Court reflect the restless strain in American politics. Calls among some on the religious right to consolidate more power in the hands of the administrative state and use that power to weaken left-wing institutions likewise demonstrate the unsettled disposition of America’s constitutional culture. These proposals, on the left and on the right, are premised on distinctive moral claims about the ends and means of politics, about the nature of the American constitutional experiment. They can be addressed, ultimately, only by understanding what the nature and purpose of constitutional law are — and, therefore, what the nature and purpose of our Constitution are. These are distinctively moral questions.

There could be no better moment, then, to have a robust and forthright debate about the moral foundations of American constitutionalism in general and of originalism in particular. Those are deep questions. Precisely because they implicate still-deeper questions about the nature and purpose of law, we can draw on a millennia-old tradition of philosophical and theological reflection on law to attempt to answer them. Our Constitution is an inheritance nourished by currents that run deeper than John Locke and Thomas Paine. It is through the writings of Aristotle and Cicero, of Augustine and Aquinas, that the wisdom of Athens, Rome, and Jerusalem can guide us in examining whether the Constitution and originalism are morally sound.

That, at least, is a premise of the newly launched Project on Constitutional Originalism and the Catholic Intellectual Tradition (CIT) at Catholic University’s Columbus School of Law. CIT is the first ever academic initiative whose mission is to explore the relationship between the Catholic intellectual tradition (of which the natural-law tradition is a major component) and American constitutionalism, with a particular focus on originalism.

What might that kind of analysis look like? The debate over the moral foundations of originalism is instructive. Catholic critics of originalism from the right have argued that it lacks a sufficiently compelling moral justification because it fails to guarantee or at least predictably produce a concordance between the result that sound moral principles would counsel in a given case and the result that the original meaning of the Constitution might require. The original meaning of the Constitution might impede something that sound morality might recommend, or vice versa. For example, Catholic critics of originalism have argued that the Constitution, read in light of substantive moral principles drawn from the Catholic intellectual tradition, authorizes vast federal power under the commerce clause and expansive deference to federal administrative agencies, positions that most originalists reject as incompatible with the original meaning of the Constitution. Crucially, these critics argue that the moral principles they use to interpret the Constitution apply regardless of whether the original meaning of the Constitution authorizes judges to resort to those principles. Because originalism makes resort to certain moral principles dependent on a historical analysis, these critics argue that originalism is morally bankrupt.

But that simplistic analysis overlooks the moral limits of legitimate political and judicial authority in the natural-law tradition. The power to make and enforce laws and the power to resolve legal disputes are good things: Each is necessary to secure those conditions that allow us to flourish as human beings, conditions that we might call “the common good.” It is well established in the natural-law tradition that the people of a society are the ultimate political authority in that society and that they have the authority to structure their government as they see fit, within the boundaries imposed by the natural law. These propositions should sound familiar to all of us: They are reflected in both the Declaration of Independence’s assertion that governments “deriv[e] their just powers from the consent of the governed” and the Constitution’s assertion that “We the People” did “ordain and establish this Constitution” to achieve those conditions — such as justice — that are necessary for the common good.

We can preserve the common good only by preserving legitimate authority, and because ultimate legitimate authority is held by the people, preserving their authority means understanding what they ordained and established as they did. If the people did not authorize judges to resort to certain moral principles in interpreting the commerce clause, judges may not do so. Judges are not free to disregard what the people determined in the exercise of their legitimate authority. That would subvert the legitimate authority of the people and thereby do grave harm to the common good. This is an important way in which originalism lays proper claim to the natural-law tradition and to the protection of the common good in the American constitutional system.

Or so I would argue. Others operating within the Catholic intellectual tradition disagree. But this is the debate we should be having: a debate, rooted in the Catholic intellectual tradition, about the moral foundations of originalism and the Constitution.