That’s the title of an excellent new law-review article by Catholic University law professor Joel Alicea, whose outstanding scholarship on originalism I have highlighted before. Responding primarily to Adrian Vermeule’s critique of originalism, Alicea presents an affirmative argument for originalism from within the same natural-law tradition that Vermeule invokes. As he puts it, he aims to “demonstrate that, far from being a ‘morally empty jurisprudence,’ originalism rests on a robust moral argument drawn from the natural law.”
Alicea grounds originalism in the legitimate authority of the people as sovereign. But, as he emphasizes, that grounding does not require direct democracy or “any particular form of government or allocation of authority among constitutional actors.” What it does require is that constitutional actors “respect the limits of legitimate authority,” which, he argues, “entails obeying the original meaning” of constitutional provisions. Judges therefore have no authority to “displace the original meaning with the natural law.”
I have no interest in intervening in the debate between Alicea and Vermeule, but I will observe that Alicea’s article strikes me as a Thomistic elaboration of my own observation that separation of powers and federalism are part of the moral ground of the Constitution, as is the duty of judges not to indulge their own moral beliefs in discerning and applying the meaning of constitutional provisions.