I’m an originalist and was mugged by Bostock. Yes, that is what I came up with. Conservative nerds: You heard it first here.
Originalism, as it is simplified, holds that judges should limit the interpretations of the Constitution and statutes to the original meanings the words had when they were enacted. In 2020, the Bostockdecision was released by the Supreme Court. Justice Gorsuch, a distinguished originalist, wrote the opinion. It stated that Title VII of Civil Rights Act 1964, which prohibits discrimination based on an individual’s sexual orientation, forbids employees from being fired for being gay or transgender. After carefully reading the opinion, I was able to follow Justice Gorsuch’s positivist logic and came to the conclusion that there is something seriously wrong. This is because nobody thought “because an individual’s sexual orientation” meant due to a person’s gender identity. This is not what the words meant.
Many conservative lawyers feel that the originalism we were born in has been lacking in recent years, especially after the Bostockopinion. Legal scholars like Adrian Vermeule, Patrick Brennan have suggested conversations that offer “common good constitutionalism” to be an alternative. This framework is rooted in the classic legal tradition and is philosophically fascinating. Although the details of this conversation are beyond the scope this essay will cover, they do have something to offer to the discussion about conservative legal theory.
However, I believe that originalism is still the best method for judicial interpretation. I have yet to find a substitute methodology, either in Common Good Constitutionalism, or anywhere else, that would allow judges an objective framework within which they can do their jobs. Although I’m not a legal scholar, the common good constitutionists may have something that is true, beneficial, and good for me that I don’t yet fully understand. In the meantime, originalism is the best (or at least the most bad) philosophy to guide American judges.
John Yoo, Berkeley Law School professor of law, is one of my favorite scholars. He has convinced me that originalism remains legitimate and reasonable. Professor Yoo’s excellent research has focused on the history and extent of executive powers in America. I admire Yoo’s legal scholarship and was therefore surprised by the op-ed that he published in the Washington Post last months against Senator Lindsey Graham’s federal abortion legislation. Conservatives must be aware of the legal options regarding abortion in a post- Roe world. Yoo is a prominent conservative voice. His op-ed has been over a month since it was published. However, it is important that we push back and remind them that there is not just a conservative case but also a consistent originalist case for conservative causes like federal abortion legislation.
Yoo’s Op-Ed has two key points. The first is that Yoo’s op-ed confuses “it is a matter for the legislature” with “it is a issue for states.” This mistake has been made before, and it needs to be corrected and rectified in conservative circles. The Dobbsopinion clearly stated that “it is now time to heed Constitution and return the question of abortion to people’s elected representatives.” Yoo laments that Congressmen were not stopped by the high court’s decision remitting the issue to the States.
This is because there is no such ruling. The Court stated explicitly that it was time to return the issue of abortion to the “people’s elected representatives”, which includes Senator Lindsey Graham as well as the U.S. Congress. Commentators like Yoo still don’t understand why Dobbs requires that abortion be legislated at state level and not by Congress. This is not found in the Dobbsdecision, unless I’m missing something. This is not an original interpretation of the Constitution or Dobbs.
Second, Yoo reads Lindsey Graham’s proposed federal 15-week abortion ban and informs him that the Constitution does not allow Congress to overturn a Supreme Court ruling. But that is not what this piece of legislation would accomplish. Dobbs ruled that abortion is a constitutional right and should be decided through the democratic process. A 15-week abortion ban would in no way “overrule” a Supreme Court decision; it would simply declare that since the Constitution was silent, the legislature was creating a statutory–not constitutional–abortion ban after 15 weeks.
It is easy to understand the argument for a federal ban on abortion. Under the Fourteenth Amendment: No state may deny anyone life without due process. Every abortion is a violation of the law. Unborn children are still alive in the womb. The Fourteenth Amendment gives Congress the power to pass legislation that ensures states do not deny life without due process.
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Although this is a first, it still conforms to the original meaning of The Fourteenth Amendment. This amendment was passed to protect the rights, liberties and property of freed African American slaves. States were oppressing this class of citizens. It is possible to draw the analogy that unborn children are also an unprotected group of citizens who are subject to state abortion laws. This is a novel interpretation of the Fourteenth Amendment.
This originalist believes that there is nothing in the Constitution, Dobbs or Congress that requires abortion arguments to be made in the states, and not in the halls. This neutered version must be resisted by conservatives. Originalism has been reduced to a value-neutral, positivist corner where judges read the law blandly and ignore any moral issues. It is often true that the original meaning of the Constitution and a statute does not answer conservatives’ questions. However, this is not always true.
Many in the originalist camp want to be as insular as possible from the culture war. They would prefer to make the work of judges as transparent as possible. This should not discourage any conservative from pursuing originalism and instead encourage them to search for an alternative. It is quite conservative, and the Constitution clearly states that it will be the supreme law in the land. Conservative judges who adhere to originalist principles and interpret law according the original public meaning will have a method that restrains their personal impulses and helps to prevent tyranny, preserve conservative liberties, and stop the intrusion of big government into everyday life.
