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Debating the Constitution: On Originalism's Most Pressing Quarrels with Sherif Girgis
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Welcome to the new books network.
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Welcome to Madison's Notes, the official podcast of the James Madison Program in American Ideals and Institutions at Princeton University. I'm your host, Ryan Schinkel. Today, as we continue Season five, I have with us as our guest Sharif Gurgas. A graduate of Princeton University in 2008, he earned his BPhil at University of Oxford in 2010, a JD from Yale Law School in 2016, as well as his PhD dissertation in Philosophy, again at Princeton just this year. While his undergraduate thesis was titled, somewhat pointedly, why Bad Sexes Like Torture? The Ethics and Metaphysics of Embodiment, his dissertation was admittedly more laborious in its title, Axiological and Legal Theoretic Questions Related to Value Incomparability, and sort of shows the difference between an undergraduate and a doctoral. He is the co author of two books, what is Marriage Man? Woman of Defense Encounter 2012 with Dr. Ryan T. Anderson and our very own Professor Robert P. George, as well as the co author of Debating Religious Liberty and Discrimination, Oxford University Press, 2017, also with Dr. Anderson and Professor John Corvino. Among his list of accomplishments includes the authorship of numerous law review articles with work cited in the New York Times, plus a Rhodes Scholarship, a tenured professorship at Notre Dame Law School, and for this year a visiting professorship at Harvard Law School, not to mention his recent election to the American Academy of the Arts and Letters. And yet, for all that, his greatest achievement remains marrying his wife, the incomparable Gabby Gerges, who earned her doctorate in Princeton's politics department and being the father to their lovely children, whereas among his smaller achievements was somehow ending up as one of my friends. I first met Sharif back in 2014 while doing natural law and philosophy seminars here in Princeton, New Jersey, at the Witherspoon Institute. He and Ryan Anderson were making the rounds at that time at different college campuses as the marriage debate was roiling the country, amid which he presented a winsome, calm and measured way to think through these issues that was very influential upon me as a college student, not just in his bravely but effectively marshaling the arguments for a side that ultimately lost the legal battle, but the manner of public engagement and example of civic friendship with intellectual and political opponents and interlocutors. Usually I say professor such and such. Welcome to the podcast, but here I shall take the liberty to say, sharif, welcome to Madison's Notes.
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Thank you. I thought you were going to mention as well that my wife Gabby finished the PhD much earlier, despite starting much later, but thanks for sparing me that and for the otherwise Kind intro.
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I am grateful for the inclusion of that fact. Today I would like to talk about debating originalism and go into the Constitution's most pressing quarrels. You have written a number of law review articles and have given speeches dealing with questions of originalism as it has gained power and influence on the court and throughout government. However, before we get to that, I would first like to ask, as you are a prestigious alum, how did you come to Princeton?
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Sure. So I applied to Princeton my senior year of high school. Naturally, the reason I did is that I had just a few years before converted to Catholicism. And that had moved me from an interest in math and science and a career in engineering, for which I did apply to the University of Delaware and get in, but to an interest in theology and from there, philosophy and the humanities in general. And that interest in Catholicism and philosophy and in the kinds of philosophy questions that Catholics ask led me to read a bunch online. And I came across a profile of Robbie George. It was called something like Conservative Heavyweight, the Remarkable Mind of Robert P. George. I read it, and I was totally fascinated. Here was this guy who shared my views, in some case my new views on theology and on politics. And he was in the belly of the beast at Princeton University. And he wasn't just secretly a Catholic while working on chlorofluorocarbons in the sciences. He was not an open Catholic just asking for permission to sit in the corner and be able to live his faith without interference from the state. He was arguing in the public square that his faith and his natural law, moral principles align, that faith and reason actually support the same conclusions on a bunch of really contentious issues. That his views were not just not bigoted, but they were actually rationally superior and defensible as such on philosophical grounds. On issues like marriage, religious liberty, and life, that was totally transfixing. I got super excited about the idea of taking classes from this guy. That was the entire reason that I had applied to Princeton. And to my surprise, I got in. It was very hard to resist going, and here we are.
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And how did you get into Constitutional law? Was that through your relationship with Professor George as a teacher?
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It was. He has two famous classes at Princeton for undergrads. One is called Constitutional Interpretation. The other is called civil Liberties. Constitutional interpretation has a reputation for being the extra difficult one. So I took civil liberties only to my shame, and I was totally hooked. His lecture style is very popular, totally captivating. But more important was the substance. These very big questions of high politics, about how to balance the role of unelected judges who should be reticent to override the policy judgments so that people and their representatives, on one hand, would, with the need for protection of individual rights, especially for the sake of minorities, as against political majorities, on the other hand. And then the substantive questions that he addressed from both a legal and philosophical angle in that class on speech, religion, life, marriage, privacy, anti discrimination, and so on. And that was the spark for my interest in legal questions and legal philosophy questions. I pursued the philosophy track for a while before jumping onto the law track, but once I got onto the second track, I realized that my interests were in the intersection of those two areas, and that's where I ended up.
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You recently gave a speech with the Mies Institute on the future of originalism. Please tell me, what is originalism and what is its future?
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Yes, originalism is usually understood to be a theory about the constitutional text in particular, but there are extensions of it for other legal texts. Textualism is the usual cognate term for interpretation of statues is the theory that says that our constitutional law and doctrine should be consistent with, and to the extent possible, rooted in the original meaning or original understanding of the constitutional text. There are a bunch of varieties of originalism these days, but they all share the idea that there's a primacy to the ratification era, either the public meaning of the text, or some people think the original intended meaning of the text, or others think the original legal impact of the text, taking the text and interpretive conventions at the time all into account. There's some privacy to that, certainly, where it's clear over all other sources of constitutional interpretation. And so people who are charged with interpreting, enforcing, applying, and following the Constitution, primarily judges, but also others in our system, should hew to that original understanding wherever possible. And its future is, I suggested in that talk, uncertain. What I was talking about there was not the future of originalism as a theory of interpretation, as the kind of thing that gets batted around in classrooms and faculty lounges and conferences, but rather, originalism is a political movement. It's got both arms, because there are academics saying what originalism should be in theory and what it would require in theory. And then there are judges and lawyers and politicians who are trying to give effect to it in the real world, primarily by getting originalist judges onto the bench, and then once they're on the bench, applying the method. And it's the political vitality of originalism that I said was uncertain, partly ironically, because of its political successes to date, having waged this battle for decades and decades to take over the federal judiciary in particular, and to have majority of the Supreme Court consists of self identified originalists. Originalism now faces some of the challenges of going from being the loyal opposition, the dissenting party, to being the governing philosophy. That comes with new challenges that I think pose a question about whether originalism, even if it's perfectly vital and firing on all cylinders in the theoretical realm, is going to be able to maintain its political support and momentum in the practical realm.
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In the 1980s, when Judge Robert Bork was stalled in becoming a Supreme Court justice, the late Antonin Scalia replaced him. Their writings formed the intellectual bulwark for this movement. As I recall, Justice Scalia said, the Constitution is dead, dead, dead, and referring to the original meaning was decided by the public understanding of the text. Throughout your writings, you've been emphasizing new paradoxes and ironies that have to be dealt with because the movement is ascendant. At least there has been some achievement in the use of the word. Justice Elena Kagan said in 2010, we are all originalists, and in 2015, we are all textualists. Now, how are originalism and textualism the same or different from what Justice Kagan and others might hold to, which is sometimes considered living constitutionalism? Can you clarify this for me?
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Sure. When Justice Scalia said the text of my Constitution is dead, dead, dead, he was trying to draw a contrast with the family of approaches that we often call living constitutionalism. The idea of living constitutionalism is that constitutional doctrine should be updated to keep up with contemporary needs and social values. That's a very rough and ready description of a family of views that differ in important ways. And Justice Scalia said, no, the Constitution's not living, it's dead. By which he meant that the only thing that has the status of law is the legal text that's gone through all the rigmarole that's needed to either ratify or amend the Constitution. Or more precisely, maybe it's what became law, or the norms that correspond to the meaning of the text as it was understood at the time that it was adopted. And if you want your Constitution to be updated to keep up with the times, whether contemporary needs or contemporary values, you need to amend the text. That's the lawfully sanctioned way to create changes in that higher law. Justice Kagan, at her confirmation hearing said, we're all originalists now. And then in some other setting, I think said, we're all textualists now. On the latter, when she was talking about statutes, I think she meant something slightly different than she did on the former so the letter she said, we're all textualists now. And I think she meant that Justice Scalia's campaign for a textualist approach to statutory interpretation, which basically roughly means hewing to the original public meaning of the statutory text or the ordinary meaning or the reasonable interpretation of the text, is the best way to be a faithful agent of the source of the text, which is Congress. And it's a judge's job to be a faithful agent of Congress. So they're not supposed to look at the text and see behind it to the values that were motivating Congress or the purposes that were motivating Congress, or look at the legislative history for the details of what were in the lawmakers heads. What became law is the text or the meaning created by the text or enshrined by it. And that should be the touchstone for judging. More people are more comfortable with that approach to statutes because Scalia and others had been effective at suggesting that the alternative approach is just too loosey goosey. It involves too much policymaking when Congress is sitting there to make any changes it wants to the text. With the Constitution, it's a little bit different. For Justice Kagan when she said we're all originalists now, though it's quoted to mean that Justice Scalia has won that debate too, she meant it in context to say something a little more specific, which is that she thinks that the clauses that living constitutionalists are understood to be applying in an evolving way are actually so broad and open ended that to be faithful to their original meaning is to apply them in an evolving way that they are meant to be broad and open ended so that they can come to encompass changes over time in whatever society needs or what it values. And so she was saying you can be an originalist at the level of theory and look like a living constitutionalist in practice when it comes to provisions that are so broad and in her view, valuated as an original matter. The Bork and Scalia view is a contrast with that. To the extent that Bork and Scalia assumed that being faithful to the original meaning of the text and being constrained as a judge would go together. And one of the kinds of paradoxes or ironies that you referred to that I think contemporary practice is revealing is that sometimes it's not clear that that's going to be possible. It might be that being faithful to the text means being less constrained or exercising more judicial discretion because the text really does incorporate a norm that's more open ended than Bork or Scalia might have expected.
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What would be an example of something that judicial restraint as the consequence of an originalist, textualist reading would fail to handle? What are some examples that come about, whether in separation of powers or claims of rights, that cannot be purely adjudicated on that originally envisioned originalist basis?
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Well, one setting that's complicated a little bit by the existence of lots and lots of precedent is free speech. So there's some scholarship recently suggesting that the original understanding of the Free Speech Clause was not something very concrete and particular like, oh, the right to freedom of speech is a right against prior restraints, which meant attempts to stop you from speaking before you've published the speech you want to publish, and maybe protections of seditious libel, so protections of criticism of the government and maybe a few other concrete things, and that's the end of the story. The Scotch I'm referring to, which includes work by Judd Campbell at Stanford, suggests that actually the Free Speech Clause's original meaning was to incorporate a natural right that was understood in pretty open ended and value laden terms. It was something like the right to express your opinion subject to reasonable regulations or regulations that are sufficiently promotive of the common good, or something like that. If he's right about that, then being faithful to the original meaning requires you to apply a principle that's very open ended and whose concrete implications are actually going to vary over time with changing social conditions, because that will affect what is and isn't a reasonable regulation. So then you'll have to choose between being faithful to the original meaning of the clause and being restrained as a judge, by which people often mean deciding cases without reliance on your own political or moral or other normative judgment. I said in that case it's a little complicated because there's so much precedent on the books that logistic originals are happy to apply because they don't think you have to overrule everything that's erroneous under the original meaning. That in practice we just limp along in free speech cases. And for the most part they rely on precedent, which itself involves lots of policy judgment to apply. Occasionally they'll rely on history and tradition to sketch the outer limits of the right or some of its details. And so they don't face the dilemma as squarely as they might. But there are other areas where the precedent they accept or the reading of the clause that they accept does require normative judgment. Maybe one example is the Equal Protection Clause. It's in the 14th amendment, ratified after the Civil War, and it says that no state shall deny to any person within its jurisdiction the equal protection of the laws. Now originalists do have a reading of that, or some of them do, according to which it would mean something discreet. It's equality with respect to the protective laws, the laws that protect your person, and maybe a few rights of the person against violence and so on. So if we're going to prosecute lynchings when the victim is white, we have to prosecute lynchings when the victim is black. But over time, originalist judges and justices quite early on and into today have accepted a reading of it that's much more moralized. It's something like no invidious discrimination or no invidious classifications in public policy. And that's impossible to apply without some kind of normative judgment, because what counts as invidious is about what's grossly unjust or unfair or arbitrary or unreasonable or something like that. And all of that is normative through and through. And so it's very hard to apply that kind of norm without some kind of normative reason.
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It seems like originalism was created as a way to resist the excesses and avoid what were considered morally egregious decisions of court. In the 60s and the 70s, many social conservatives would have been supporting judicial appointments and advancing originalism, probably because of the rulings consequences rather than necessarily on judicial procedure. You mentioned in your lecture that originalism isn't a theory the way Platonism a theory. It's always interacting and depending upon politics for its growth and success. That leads me to wonder, is originalism necessarily an ethical, amoral, purely procedure based theory as a form of positivism, as one of your Harvard colleagues, Adrian Vermeule, makes that argument? Or is it something that also has some commitment to a substantive human good? But what is just or unjust? Something that would have been familiar to, say, Justice John Marshall.
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It's true that originalism is widely understood to be apolitical in one specific sense, which is that it makes the criterion for good judging something other than agreement with the political moral merits of the outcome. So you're not supposed to judge based on whether you like the outcome or not, just that directly and simply, or whether you think it's morally good or bad. That directly or simply you're supposed to judge by a content independent criterion, which is this, the original understanding of the text people adopt. And you're also right that it rose in the beginning because that criterion was understood to correlate with politically attractive outcomes for a segment of society. So the Warren and Burger courts of the 50s and 60s and into the 70s were understood to have done two things at once, to have departed from the original understanding of the text, and to have departed in a direction of producing socially progressive outcomes. And so, in one and the same call for return to the original understanding of the text, it was easy for a lot of people on the political side of things to hear, oh, and that means a fight against political progressive outcomes being imposed on the people by judges. So that sounded good to both the legal nerds who cared about originalism in the abstract, perhaps, and to people who were motivated more by the politics of the outcomes that the method promised. But there's no guarantee that it's always going to produce politically conservative outcomes or lead to the repeal of politically progressive outcomes. And so one question that I was discussing in the paper is whether we can really sustain political support for a method of judging that is, in one sense apolitical. That's always going to be a paradox. It was not hard to do that at the time when those two things seemed to run together, because the most salient jobs for originalism seemed to be reversal of the Warren and Berger court precedents that were also politically progressive. But it's an open question whether the political momentum will be maintained when the movement has slayed most of its white whales, including cases like Roe v. Wade. And this is a simplifying picture. What's left is just the task of not messing up in a political direction either way going forward. Now, I said it's apolitical in a sense, because my own view is that no prescriptions for adjudication, no instructions to judges, could ever really be justified without moral argument at some level, and that moral argument might have the implication that in some cases normative reasoning by the judge at the point of application of the law is appropriate, or maybe even in some cases, inevitable. And in recent times, there's been a divide among academic originalists, some of whom want to justify originalism mostly in what you describe as positivist terms, where they want to argue that originalism is the correct understanding of the law. Just if you look at legal sources, they think, in particular, if you look at the habits of argument that are acceptable or not acceptable in our legal system as to the Constitution, the general theme is that when the original meaning is clear, it always trumps, and that wherever possible, lawyers want to be able to ground their advice to courts in the original meaning. And so even when they disagree on the outcomes, judges are paying a backhanded compliment to originalism in a way that suggests that it is our customary law of interpretation or Something like that. That's an attempt to avoid moral reasoning in defending the idea that originalism is the law. Or they might argue that when it comes to legal texts in general, the general rule is that you understand a text by its original understanding. That's just how legal texts work. And so if it's law that you're going to be doing, if it's this legal text you're going to be applying, you have to go by its original meaning. But I think in the end, those approaches can't avoid a moral argument either, because you always face the question, the judge always faces the question. Even assuming that law is inherently originalist, which I think is an open question at best, is it law that I should be doing, or law star, where law star is just something else that happens to be more in line with living constitutionalist approaches, but made in parallel to those positivist arguments for originalism and made in response to thinkers who say if you really care about morality or the natural moral law, you have to go beyond originalism. There have been natural law scholars like Joel Alicea, like my colleague at Notre Dame, Jeff Pojnowski, and his co author Kevin Walsh at cua, who argue that a proper understanding of the natural law tradition as applied to the history and practices of our legal system actually support originalism or some variety of originalism, or at least a kind of presumptive originalism in our judging.
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Would those at all be similar to theories in the writings of Hadley Arus, or more recently Joshua Hammer with his idea of common good originalism, which I think was an attempt to appropriate some of the ideas from Adrian Vermeule's book Common Good Constitutionalism, but to justify them on an originalist basis. Would those things be compatible with those views you just mentioned of Professor Walsh and others?
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I think they're a bit different. I think Hadley Arkes has the view that if the natural law tradition in general is correct to think that the point of law and policy is to serve the common good, which is what morality is about, then it follows that anyone whose task is to say what the law is and apply the law to cases should also be consulting the demands of the common good and morality. That's an inference that people like Pojanowski and Walsh and Alicea would deny. They say it doesn't immediately follow from the fact that the system as a whole has to serve the common good, that every part in the system has to be consulting the common good when it's doing its job, and that you could have good natural law arguments for Judges not to apply natural law reasoning case by case. Josh Hammer is in between, if I understand him correctly. He seems to say we should apply the original meaning, but at least when it runs out, or maybe when it's unclear, or even maybe just where it leaves wiggle room. Either way, use a direct understanding of the common good and its demands and the natural moral law to fill the gaps or to resolve ambiguities, or even maybe to tip a 60:40 balance towards the 40 when the 40 is better. So I think these reflect different approaches.
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There is also the option that's presented by Justice Clarence Thomas, influenced by the writings of Harry Jaffa. He would assume a laconian framing that the Constitution presupposes the Declaration of Independence, which has the language of God given natural rights, which cannot be messed with by law but only respected. Is that compatible with originalism? Or is originalism more to what Justice Scalia said a decade ago at the Dominican House of studies in Washington D.C. where he took Quinas's definition of law that must be promulgated, an ordinance of reason for the common good and by a governing authority. And he said, this is great, but here he's completely wrong about what judges should be doing and how they apply the law. At the Dominican House, himself being a
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very faithful Catholic classic Scalia. Well, I think the question you're describing Thomas's view on is one on which originals could fall in either direction. So they could think that the Constitution's original understanding needs to be read in light of the historical context in general, that a really salient part of that historical context is the Declaration of Independence. And so it should shade our reading of, for example, the rights that are described in the Bill of Rights. If the Declaration tells us that the Founders were natural rights theorists, then maybe that shapes how we read a sparse and uninformative text like the Freedom of Speech clause. I think that there's something to that. There's a lot of ambiguity in the text, or a lot of spare and modest and pretty thin text that has to guide the adjudication of thousands of decisions on any number of fine grain questions and other things equal things that are in the air at the time, even questions of political theory should shape our understanding of what they might have meant or what they thought they were doing, what norm they thought they were enshrining when they adopted this or that text of the Constitution. I think just to that extent, Justice Scalia might not disagree. What Scalia objected to in that speech, which I think was one of the last speeches he gave before he passed away is the thought that on top of checking that a law went through all the hoops that it has to jump through to become a law, or in the case of constitutional provision, satisfied all the requirements for a constitutional amendment or was really part of the text that was ratified in 1789. On top of checking for all of those things, a judge should also check that the substance of the law is consistent with the common good. And if not, then they should ignore the law as being no law at all, in just the same way that they should ignore a statute if they judge it to be inconsistent with higher law, like the Constitution. I took Scalia to be saying, if our system does not give judges that job, they can't arrogate it to themselves. So from the fact that a truly just law would also substantively serve the common good, it doesn't follow the judges, just because they're tasked with enforcing law or saying what the laws are, should themselves ask whether the law serves the common good. A good example of this, which I'm sure I read somewhere, makes the point stark. Think of a bailiff. A bailiff in a particular state court system might have the job of taking a criminal defendant after their verdict has been read and either walking them to the courthouse door so that they can walk free if they've just been acquitted, or to the jailhouse if they have been convicted. But the bailiff might have read his Aquinas and thought to himself, you know what? A legal verdict is a kind of law. It's a legal judgment. And all laws, verdicts included, to be just need to be consistent with the common good. Which means that as I walk this person to one door or the other, I need to be thinking to myself, was the statute of conviction substantively just? Was the evidence submitted at trial sufficient to justly convict? And if it wasn't, then I'll let him go. Because after all, an unjust law is no law at all, and an unjust conviction is no real verdict, and therefore I can't act on it. Well, everybody would say no, that's not his job. His job is to give effect to the order issued by the court or by the jury in the form of a verdict, and leave the correction of injustice to other parts of the system. And Scalia's view, if I understand him right, even in that setting in particular, is just that the federal judge is more like the bailiff than like a lawmaker in one respect, which is that when they're tasked with enforcing a law, either a statute or a Constitutional provision. They are not to ask themselves whether they think that it's substantively just before deciding whether to enforce, they're to enforce it and leave the correction of injustice to other parts of our system, like the political actors or the people acting as a whole to ratify the Constitution.
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I guess it comes down to a question of whether the system ultimately is legitimate, based on principles of justice and conducive to human flourishing, or if one considers that system illegitimate, how much does one trust that the higher framing from which the particular laws and statutes derive is noble and enshrining of our rights and our duties towards the common good? Thus, if there is the wrong ruling or the wrong verdict, can the system itself correct for that?
- [29:57]
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I think there are two questions, and everybody agrees on one, but not on the second. So one question is whether the system as a whole is serving the common good and is just enough in the sense of consistent with justice enough. And everyone that I can think of agrees that if the answer to that is no, then anything goes. Then, you know, you need to make do. You need to make sure that you can do whatever good you can and limit whatever evil you can in your own way. Actually, as I say that, I realize there are some originals who think even then your obligation is to recuse or resign from your office rather than to issue a judgment against the positivistically interpreted understanding of the law. The second question is, assuming that the answer to the first question is, yeah, the system's just enough for most operations to be mostly just, Is there a second gatekeeping function that judges should serve on a more case by case basis, where they're to ask as to this statute or this constitutional provision, rather than as to the constitutional system as a whole, whether the legal norm in front of them is just enough that it should be applied or tweaked. And on that second question, originalists tend to say no, though there's some variety, and non originalists tend to be more comfortable with some reading of the law in light of political moral judgments, even if that's not the reading you would have had if you were trying to ignore the political moral balance.
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Would you say that your version of originalism thinks of it as a form of positivism, or do you think it assumes some incorporation of natural law principles?
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Well, I think you need natural law principles to defend a claim that people ought to be originalists as judges. So that's one place where I think morality is inevitable. I also think there are some constitutional norms where you have to check the Constitution and You have to check the original understanding, either of the text or of the norms for interpreting the text, to figure out whether normative reasoning comes in at any stage. So, for example, if it turns out that the interpretive conventions at the time were such that you should other things equal, resolve ambiguities and direction that makes the law more sensible rather than more harmful, then I think some normative reasoning is going to be inevitable and appropriate in that case by the likes of originalism. So I also think there are going to be other settings where it's just going to be hard to avoid, whether it's been specifically authorized or not. For example, in the stare decisis analysis, which is the analysis that judges use to figure out when to overrule a precedent that they think was wrong, most judges think think that the answer is sometimes it's not the case that you have to stick to every precedent, no matter how awful and wicked it is. But it's also not the case that you get to overrule everything. Every time you think 5149 that it was wrong, that would be too destabilizing. So it's gotta be something in between. And the in between position is fuzzy. It depends on a cluster of factors, like how egregiously wrong the original decision was, whether there have been substantial changes in facts or law since then that undermine its foundations, whether it has wrought havoc in other areas of the law or in some judicially recognizable way in the outside world. And both the application of some of those factors and the weighing and tallying of them as a whole are exercises in judgment and discretion that will involve some normative reasoning. I think, inevitably. So there are areas where it's very hard to avoid. But I also think there are limits on where it's appropriate. And if you had a text that very clearly said there is a right to abortion or there isn't a right to abortion or what have you, you wouldn't be in a position as a judge to say, this is what the original understanding of the text was. This is what the people gave us. It's absolutely unambiguous. But I'm going to go in the other direction and act to coerce other parties to act according to my understanding of what justice requires, just because I think justice requires it.
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B
Is the story decisis, the use of precedent to have continuity overall in rulings while still tinkering once in a while, merely enfranchising, the kind of excessive readings that a living constitutionalist court would do, and originalism, say, a generation later is finding some way to account for it on this textual reading over here, or is there something that originalism has to
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countervail that on the question of stare decisis? Some originalists, like Justice Thomas, think that the judicial oath and the oath of fidelity to the Constitution require you to overrule precedents if you judge them to be clearly erroneous, regardless of any other factors, whether people have relied on them, whether there have or haven't been major changes in factory law that justify a different approach, et cetera. That's not the dominant view. I think the dominant view among certainly originalist Justices and possibly original scholars is that stare decisis is kosher by originalist lights, that either the original meaning or understanding or the original customary norms is shaped the judicial power, which is the power that Article 3 of the Constitution gives to judges, or some more pragmatic consideration that we have to balance the values of getting the law right and keeping the law settled. And the best way to do that is for us to keep it settled by deferring to the efforts of others to get it right one way or another. These formalist or these more pragmatic reasons lead most originalists, I think, to think the stare decisis has a more meaningful role to play. And so it's not just what Justice Scalia called faint hearted originalism that leads them to tolerate some precedents that originalism would have decided differently in the first instance. That, of course, leaves it open to originalists in practice to say, well, we're going to invoke stare decisis when we like the outcomes and we're going to reject it, or say that it's been overridden, or say that the factors that shape its application suggest overruling. In the cases where we don't like the politics of the outcome, people will just have to look at the record and decide for themselves. I do think sometimes the Justices are applying precedents that they might not like, but think it's too disruptive to overrule. And in a way, Justice Scalia himself did that when it came to some administrative law decisions, like what's called the non delegation doctrine, the idea that Congress can't give executive officials too much discretion to enforce or make policy by passing statutes that just say, Mr. Secretary, Madam Secretary, just do whatever's in the public interest on this regulatory area, or what have you. There are cases where Scalia said this is probably a violation of non delegation, but it's either too hard or too mushy for judges to try to set limits on it. So I'm just going to let these precedents that allow massive amounts of delegation to stand.
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B
That's story decisis alongside stare decisis. There is a related issue of legal traditionalism which you have written about as well. Now, Judge Kevin Newsom made a speech a few years ago where he said that I worry that traditionalism provides far too amorphous and manipulable a criterion for a legal doctrine. You were cited in a New York Times article on that very speech. What are your thoughts on traditionalism?
- [37:01]
A
Traditionalism in interpretation usually refers to the idea that a judge might resolve a constitutional question relying at least in part, not simply on the original meaning of the text or the plain meaning of the text, not simply on judicial precedents, and not simply on contemporary needs or values, but on something in between that's not judicial, namely historical practices of political actors. So a decision might say XYZ power must be within the President's authority because presidents have always exercised it without a peep of protest from Congress, so we're going to let it stand. Or XYZ power must fall outside of Congress's authority because Congress has never before tried to exercise that power. And so they probably don't have the power because probably the reason they didn't in the past is that they thought it was unconstitutional, it was beyond their authority. Or XYZ activity has been long protected by the states, maybe by state legislatures or state constitutions or by executives as a fundamental right, and therefore we will treat it as a fundamental right under the U.S. constitution. Or they've always regulated the states have always regulated it, so we're not going to treat it as a right. And there I think it just depends. Sometimes the original meaning of the text might point you to traditions. It might incorporate pre ratification traditions, or it might even point you to later traditions. As John Stinner, who's an originalist, who thinks the 8th amendment as originally understood said, you know, when it says no cruel and unusual punishments, it doesn't just mean no punishments that are today considered cruel and unusual in 1791, but it also doesn't mean just anything. It actually rests on practices over time. On his reading, a punishment will come to count as cruel and unusual and therefore barred by the US Constitution. If it has been abandoned for long enough in the political process, even if it only begins to be abandoned in the 1900s or something like that, so for 50 years we give up the death penalty for non homicide crimes, then eventually it will become unconstitutional to do that, even if it wasn't originally. So that's a case where practices are legally relevant just once you understand the fixed original meaning of the text. And in other cases, I think there might be room to rely on practices to fill gaps where the original meaning and the precedent and everything else run out. And it might feel and for Justice Kavanaugh, for example, it is more legitimate for the court to rest on practices than on their own normative judgments, at least wherever possible. I think it's not a perfect solution for that because I think Judge Newsom is right that interpreting practices is itself a kind of fuzzy thing that involves a lot of discretion and that sometimes judges might have to engage in normative reasoning to do. But I do think it can be better than nothing.
- [39:41]
B
Would this be a way of resolving the problem about the level of generality?
- [39:45]
A
The need to incorporate the task of interpreting traditions is often thought to give rise to a level of generality problem. You look at a bunch of practices, for example, the fact that states long respected people's right to refuse medical treatment and those practices are not self interpreting. They don't come with their label on a sticker attached to their forehead. They need to be interpreted by somebody else. And one person looking at that practice might say that supports a right to refuse medical treatment, period. And someone else might look at it and say that supports a right to autonomy in medical decision making or in matters of life and death, which on their view might include a right to assisted suicide, for example. And others might look at it and say that supports like a very wide ranging heavy thumb on the scale in favor of liberty of all kinds because it's about autonomy. And so maybe that includes the right to abortion or something like that. The levels of generality problem in that setting is the problem of picking the correct description of the historical practice from which you draw some legal lesson. I think this is a very difficult problem. It's been with us forever. There are some settings in which the resolution of it is itself a normative question. So you look at a practice when the authors of the practice don't tell you what their legal reasoning was. There are some cases where all you can do is ask yourself what's the principle that would best justify that practice? And then it's that principle that comes with its level of generality built in. So you're still reasoning from the people's practices, but you are bringing your own normative judgment to bear and figuring out how best, how most charitably, to describe that practice. The living traditionalism article you mentioned doesn't so much put forth a theory of interpretation as try to shed light on one. It's following the work of others who've done a great deal on that long before I did, like Mark D. Jerolamy. And it's just saying, look, there is this very large number of cases and wide range of areas where the Supreme Court looks to historical practice, not just original meaning and judicial precedent and contemporary values. When it's interpreting the Constitution, it turns out that it shows up under all of the separation of powers principles. Almost all of the federalism questions, almost all of all of the rights claims in some cases have been applied using historical practice. It attempts to survey the different rationales you might give or some people have given for relying on practice in those cases, and then it attempts to say what would follow from the attempt to implement those rationales. For example, I think one thing that follows is that once you're looking at practices long after ratification, then there's no rational stopping point. There's no reason to say, well, we are going to look at practices long after ratification, so they're not going to really be shedding light on the original meaning of the text to the people who gave you the text, because we're looking 50, 80, 100 years later, but we're going to cut things off at 120 years after that. No new development based on practice. I think that's arbitrary. You can give an originalist argument for thinking the ratification moment is special. You can think of a living constitutionalist argument for the present day. The rolling present is special. It's very hard to think of an argument for what I call the dead hand of the middle past. Like we're going to cut things off at 170 years after ratification. And so I think it follows from all of the rationales for relying on historical practice that once you're doing it at all, at least if you're looking at long post ratification practice, you have to allow constitutional doctrine to keep developing in light of changes in practice. So if for a long period of time something was regulated, and so we said it's not a right, but then in response to that constitutional decision, the states start treating it as a right, as a backlash for 50 years. And eventually, if you're going to stick to this kind of living traditionalist method, you're going to have to say, well, now it's become a right, even without any change in the constitutional text. That's a move that I think most of the originalists who cite historical practice would not welcome. And so part of the point of the article was just to say what FYI. Here's what follows, I think, as best as I see it, from the use of this method.
- [43:51]
B
Where would living traditionalism be between originalism and living constitutionalism? Would it be in the middle, as if it's on a spectrum? Is it a triangle?
- [43:59]
A
Is it just?
- [44:00]
B
This is how we apply things where originalism doesn't necessarily provide us the answer from the theory. How do you configure it relationally?
- [44:07]
A
There is a way in which it can be understood as in between because it's allowing more development than originalism, because it's looking post ratification. But it's setting some constraints on that development because it's saying your constitutional doctrine needs to be rooted in long standing practices, not just the immediate present. But there are varieties of all these views that try to make them complementary or at least reconcile them. So some will say. And Mark D. Drolmy, who I mentioned earlier in some recent work, has suggested that maybe some types of Virgilists could take on tradition where the original meaning is unclear or runs out or actually points you to tradition. And so these things need not be inconsistent. We don't have to think of traditionalism as like its own entirely separate and independent approach to constitutional interpretation or adjudication. It could just be an adjunct to these other methods. When you need to fill in the blanks, look to historical practice as a guide or use it as a persuasive data point. As Justice Barrett says in one opinion where she says, I don't want to give it too much weight. It's not this positive, but maybe it's relevant, it's informative, and no reason I can see that a living constitutionalist couldn't do the same thing. They could say, look, we want the doctrine to develop. The founding era is not our own and we have different needs, and so the doctrine needs to be flexible enough to accommodate those needs. But when we figure out what the new doctrine should be, or how to develop it or apply it, we can certainly learn something from the lessons of history. And a historical practice that long endures suggests that it's durable, that it meets needs in a wide variety of circumstances, so that should count in its favor. We should think twice before upending a long standing practice because we don't know what values it might have been serving that might not be visible to the naked eye, and that we might regret giving up too abruptly and so on.
- [45:52]
B
In your article, Originalism's Age of Ironies, you make the point that the more one holds to a pure originalist theory, actually, the less and less it restrains the kind of judicial ruling that can take place. And this is indicative of the movement overall. As originalism has become more successful, certain problems have arisen in which the original intent is inadequate to deal with the current realities of being a governing theory of the courts. How is the current court doing under this case and seeing originalism in practice?
- [46:26]
A
So I was pointing to a trend in a couple of cases. I don't know that it generalizes completely where Justice Kavanaugh would say what I was alluding to earlier. When the original meaning is unclear on a question, for example, on the freedom of speech or the right to keep and bear arms, the original meaning of that text is pretty spare. At least the text itself is spare. Maybe the meaning points you to a bunch of legal principles arising from treatises or captured in treatises arising from historical practice, but you look at those principles and they don't seem to spare speak to the issue too clearly. Either way, you look at judicial precedents and they don't help a ton, which will often be true with the Second Amendment, at least for the Supreme Court, because it has so few precedents to go by in those cases, he said. I, Justice Kavanaugh, think that there are two options. You can rely on the judge's moral reasoning, or you can rely on the moral reasoning of the people as reflected in long standing historical practices. If the people have long adopted a certain regulation that counts in favor of saying the regulation is permissible, rather than having the judge decide for himself or herself, I like the regulation. I think the regulation's reasonable, or I don't. Justice Barrett in some of those same cases has said, no, I'm not so sure about that. The fact that the practices arose long after ratification and that they were not themselves amendments of the constitutional text means that for an originalist who cares only about the original meaning of the text, they don't have the status of law. So you're just making it up if you go by those, if you resolve legal questions by reference to those. But what I was pointing out in the ironies piece is that ironically, when you give up reliance on that other source of constraint, or at least what Justice Kavanaugh hopes will prove to be another source of constraint, namely the later practices, it actually frees you up to more openly at least, and more eagerly and more pervasively make your own principles from scratch. And that's what Justice Barrett does in an opinion in a sleeper case. I think in most respects it was a free speech case, asking about the constitutionality of a restriction on which trademarks you could get registered under the Lanham Act. And Justice Barrett said, look, the original meaning doesn't speak to this. Historical practices around the time of ratification don't speak to this. Judicial precedents don't settle this question. So instead of looking to much later practices as a constraint, I'm just going to admit that we don't actually have clear constitutional law on this question. So I will develop a principle which will itself ask whether the regulation is reasonable and therefore will require judges to say whether it's reasonable in light of the purposes of trademark. And then I'll just apply that. So by rejecting the forms of historical constraint that Kavanaugh suggests they go to when the original materials run dry, she's actually increasing judicial discretion or flexibility or the role of normative reasoning by judges. And that's just one instance in which what I think of as the twin original promises of originalism to tie us to the founding, the sort of ratification era law only, and to tie judges hands come apart because sticking to only the materials you can find at ratification gives you more room to fill the gaps yourself based on your own normative reasoning.
- [49:40]
B
Yuval Levin's book American Covenant made the argument that we can deal with our political problems by simply taking advantage of the avenues of the Constitution gives us. I remember reading and feeling more positive about our country. On the other hand, a lot of younger people are more disenchanted with the kind of conversation we're having, akin to that line from the Coen Brothers film no country for Old Men. If your rule brought you to this, of what use was the rule? The debates have not finally settled basic crucial moral questions or long term political battles haven't gotten policy results. How do you convince younger generations that there are real stakes in the kinds of conversations we're having?
- [50:23]
A
Well, I suppose I would first sympathize with what I can sympathize with. There are plenty of social ills that I think are not being handled right. There's a level of political polarization, at least along party lines, that is more intense than at any time in recent history and that it feels often like a state of total war of each party against the other, where each is afraid that any political victory for the other is a kind of undoing of the social fabric or the common good, and so that the stakes in every election and every runoff and every primary feel like they could not be higher. And it's really hard to live a political life as a community, as a society that hangs together when the stakes always feel that urgent and that intense. So I would sympathize with all of that. Then I would say, well, look, some very law nerd type conversations which began in room 127 at the Yale Law School in 1982 with the very beginnings of the Federalist Society have led to enormous social or legal change, including the overruling of Roe v. Wade and many other things that are less politically salient, but still very consequential. And so ideas do have consequences, especially when it comes to the law. And I don't think our legal system or our political system are so ruined or so rotting in the core that we should work outside the system. So in general I try to avoid is it all worth fighting? Anyway? My task in life is not to decide thumbs up or thumbs down on our political order. My task is to tend to the little plot of creation that has been trusted to me or in which I have some role to play, which means for myself and for my family and for my students and for my local community. And so I think it's productive to keep your eye on those walls and to think that if you are in the law or if you're thinking of being in the law, this is a realm where you are not going to solve all problems, where the resolution of those problems will have to pass through boring procedural hurdles and fine grained, eggheaded arguments about the original meaning of this or that clause or how to apply this to that precedent. But that the change is real, the goods that can be achieved, even if they are local, are real. And the fact that the goods to be achieved are not permanent victories is not a bug of the current System or of 2026 or even of the American political order. It's just a feature of society on this side of the veil. That's just how things are. Nothing is permanent in either direction until, in my view, as a Christian, the end of the world. So that's where we are. It's not different in kind from where we've been. There have been other periods in American history also of intense polarization and social breakdowns, of social trust in the 60s and many times before that. And so I guess I would have a little bit of cynicism to sympathize, but then a decent amount of optimism that local efforts to improve things are not in vain.
- [53:31]
B
Is the point that the process, all this proceduralism and fine grained legal discussion does attenuate to some basis upon actual justice and does serve our country well, even though slow Victory is partial. There is something noble about it that has borne fruit before and can bear fruit again. And so it's requiring courage and patience.
- [53:51]
A
That's right. The rule of law, not of men, means process. It means that victories will have to pass through a bunch of boring phases of germination before they can really blossom. And that is a bug when you're very confident of the goodness of the outcome that you're pursuing. But it's a feature when you zoom out and realize that people are entitled to some predictability and coordination and settlement so that they can order their affairs. And when you remember all the times that somebody else is zealous for a grossly unjust outcome and the process is your only hope of slowing it down or giving time for other factors to intervene to move things in a better direction.
- [54:31]
B
The Bonus Round what is your favorite Princeton memory?
- [54:34]
A
I think lawn parties. My junior years at the eating clubs. Every word in the sentence requires a definition for the the non Princetonians. But basically there are these things that are like co ed fraternities. They're mainly just places you go eat all three meals with your friends. It's a reliable way of seeing your friends. They all sit in these big mansions along a single road. You don't live there, but most members
- [54:56]
B
just go there to eat Once a
- [54:58]
A
year they have this thing called lawn parties where God always gives Princeton perfect weather for lawn parties. Each of the clubs brings an artist or a band for musical performances. And people sit outside in pastels and they drink grown up drinks and they listen to beautiful music surrounded by their friends without a single care in the world and under a glorious New Jersey sun. That to me is just a little acute expression of the amazing social life that I was blessed to have at Princeton with friends that I'm very close to.
- [55:33]
B
Favorite Princeton spot. If it's not one of the dining clubs.
- [55:36]
A
Chancellor Green Rotunda. It used to be a library. Now it's got a bunch of fake books for display. It has amazing stained glass, beautiful oak paneling.
- [55:47]
B
It's the Octagon one.
- [55:49]
A
It's the Octagon One. And it's unembarrassedly glorious place for contemplation and study.
- [55:55]
B
Favorite political philosopher. Ancient or modern? Pagan or Christian? Conservative or liberal.
- [56:01]
A
Maybe Thomas More, maybe Aristotle.
- [56:03]
B
Okay, one Christian, one pagan. If there's a constitutional amendment you'd want repealed, what would it be? The 17th direct election of senators.
- [56:11]
A
That's right, because when state legislatures picked the senators, there were meaningful limits on federal power because those were the people who were motivated to put those limits and to expect the Supreme Court, through its doctrines, to impose those limits in a meaningful and wide ranging way is a fool's errand in the long run.
- [56:29]
B
Do you have a favorite modern legal theorist, living or dead? You know, he's the favorite, but the
- [56:34]
A
person I most consistently enjoy reading and very often learn from and I'm shocked by the range of is Fred Schauer.
- [56:41]
B
Favorite Scalia descent for aphorism.
- [56:44]
A
I have totally cliched answers on this. There's a case called Morrison v. Olsson where his dissent was just a remarkable rhetorical tour de force. He says sometimes a wolf comes clad as sheep, but this wolf comes as a wolf. And he's talking about what to most people would be abstruse question of separation of powers, but in a prophetic vein that seems to be vindicated day by day.
- [57:06]
B
Do you have a favorite Supreme Court justice and a least favorite I am
- [57:10]
A
stopped from picking anybody but Sam Alito, who took a chance on me by making me a law clerk. And I will just say as a human being is as extraordinary as it gets. He's a brilliant judge and as a human being, just a an extremely charitable and humble and personable person in ways that don't show to the public. And his questions at oral argument. Least favorite among the dead, if you wish. Among the dead. Let's just Sage Roger Tawny why not everyone's least favorite?
- [57:35]
B
At the end of your speech you were quoting Alistair McIntyre in his book After Virtue, where he discusses another Saint Benedict help refound moral community. You were saying to deal with new problems of originalism, that there would be a new Judge Bork, although an altogether very different one. Tell me what you meant by that, please.
- [57:53]
A
In that setting I meant somebody who, like Bork, would have a broad and deep and compelling vision for what changes are needed, what solutions to our problems exist, and who will share, broadly speaking, Bork's commitments to the rule of law and to democratic values, to having the people, not unelected judges make the biggest political moral calls in our system. But who, unlike Bork, knows of the problems that ritualism has faced since his time and in the wake of its great successes, and will therefore be in a position to answer the more fine grained and implementational questions that the method faces now that it's in charge?
- [58:35]
B
You once spoke to me about your Coptic heritage. Can you tell me a bit about your family?
- [58:41]
A
My parents were Egyptians, born and raised in Egypt. They met in Egypt. I was born in Egypt. That's why I've Never run for office. I can't be president. And we moved to the US When I was two. But we did bring over with us, so to speak, both the language, that's what we spoke at home, was the Egyptian colloquial form of Arabic, the food, which is amazing. And to some extent the values. And the values included Christian values, though we ended up falling away for a time. And then I eventually converted to people Catholicism, but very steeped in the Christian values that the Coptic Orthodox Church embodies. It also came with an appreciation for the things that Egypt lacked, like the sorts of freedoms and the degree of rule of law and constitutional order and avoidance of public bribery and so on that we have in the United States. And I would be remiss if I didn't admit the debt of gratitude I have to my parents, not just for my formation and my nourishment and all the things that very good parents provide. Mine were very good, but also for the appreciation for the kinds of political values that for all its problems, the United States is pretty good at upholding and that are quite rare in human history.
- [59:50]
B
I think in the year of America, 250, it's always good to remember what we're grateful for, especially our country. And I don't care if it's constitutional or not. If you were running, I would vote for you.
- [59:59]
A
Very kind. Thank you.
- [60:00]
B
Last thing I'll say is I remember once seeing you and Gabby at St. Paul's Church many years ago. You were off together just after daily mass or Sunday mass. I was on the other side. You didn't see me, and you were having this little joke between the two of you, and she was pointing at you, you were pointing at her and you were both laughing. And I thought, I have no idea what they are saying, but they are so completely in love, it's amazing to look at. They are the loveliest couple. Then I saw you in Notre Dame a couple years ago and I was able to meet your kids. And anyway, it was lovely to see your family. And so I just wanted to relate that you are doing great on the most important things in life.
- [60:35]
A
Thank you for that. And all the credit for any good that you saw in my family goes to my wife. And since we started with a joke about how much better she is than I am, which was not really a joke, it's probably fitting to end there, too.
- [60:46]
B
On that note, Professor Gurgis Sharif, thank you very much for joining us on Madison's Notes. A transcript for this interview will be made available on the new Madison's Notes substack page, along with a copy of the audio recording. If you desire further Madison's Notes content, please check our episode catalog and subscribe to receive future ones. We are always grateful for any likes and positive ratings. Thank you for listening. We'll see you next time on the Madison's Notes podcast.
- [61:27]
A
Sa.