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Originalism and "Might Makes Right"

Added 12-07-21 11:21:03pm EST - “"Slavery was legal; it was also wrong, so wrong as to justify resistance to the law." Many people find this...” - Reason.com

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Posted By TheNewsCommenter: From Reason.com: “Originalism and "Might Makes Right"”. Below is an excerpt from the article.

"Slavery was legal; it was also wrong, so wrong as to justify resistance to the law." Many people find this sentence both comprehensible and true. They see law as a product of its society; sometimes that "positive" law has to be resisted, because societies can go quite badly wrong. But to some others, things are more complicated. They see law as a branch of political morality, and though it isn't always perfect (political morality being distinct from morality simpliciter), there are limits to how bad it can be. Either slavery can't have been legal, or it can't have been all that wrong.

Or so one might think from reading an editorial at Ius & Iustitium, claiming that "The End of Originalism" is nigh. On the editorial's account, originalism can't survive a post-Roe world governed by "a patchwork quilt of state laws," where the lives of unborn children hang on arbitrary state lines. Absent some new decision that the Fourteenth Amendment guarantees equal protection to persons still unborn, originalism (the editorial argues) will be exposed as equally arbitrary. Because it holds "that the text alone is law," or else preserves whatever the law was at some prior time, "[o]riginalism is incompatible with any morality beyond 'might makes right.'"

The editorial's first problem is anachronism. However originalism might fare in a post-Roe world, we should recognize that most of its history was in a pre-Roe world, when states had different laws about abortion (and about slavery, and about which churches to establish or disestablish). Whatever one makes of the Fourteenth Amendment, the original U.S. Constitution, the one without any amendments in it, said nothing about guaranteeing equal protection to "any person"; such protection as there was came from state laws, or perhaps (to the Barron contrarians) from the privileges and immunities of citizens referenced in Article IV. Surely no contradiction can be found in reading that Constitution, as of the day it was enacted, in an originalist way. And just as evils like slavery were expunged from that Constitution only by amendment, those who seek to end abortion might need to pursue that end through new enactments—say, legislation in the several states, or federal legislation in the limited areas of congressional power, or a nationwide constitutional amendment. (What constitutional amendments would the editorial's author support?)

The editorial's second problem is its straitjacketed view of both originalism and positivism. The best versions of originalism (in my humble opinion) hold that the Founders' law is still law today, as lawfully altered. If their law was necessarily limited by the natural law, and if ours is too, then originalism and natural law are perfectly compatible; our law can still be theirs, as lawfully altered, for both the original law and the lawful alterations would be subject to natural-law limits. And the best versions of positivism reject the view "that the text alone is law"; indeed, some positivists (ahem, ahem) treat the common law as law too, though it was never "enacted by the sovereign." To the extent that rules of common law or principles of equity were part of our law at the Founding, they remain part of the law today, unless overridden by contrary state or federal law within the competence of those various governments.

But the editorial's gravest problem is that it misconceives the moral case for positive law. The argument for positivism isn't that might makes right. The argument is that we can best understand not only our actual moral obligations, but also those "semblances of morality" on which human societies insist, by keeping the distinctions between them straight in our minds—by respecting the difference between mores and morals, between the artificial "must" of a legal rule and the real "must" of an ethical one. The simplest explanation why one has a political-morality obligation to pay one's taxes by April 15, or to drive on the right in the United States but on the left in the United Kingdom, is that our legal system pretends that we should, and we happen to have good moral reason to play along.

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