In the Wall Street Journal, Hadley Arkes: ‘Originalist’ Judges Lose Sight of Truths That Precede Law – Even if the Constitution is silent on abortion, nature and science have a lot to say about it.  From the introduction:

The Supreme Court opens its new term Monday with six nominal conservatives appointed by Republican presidents. But conservatives have been shaken in their confidence that those six will yield majorities on issues that deeply matter. That declining confidence comes along with a serious argument within the conservative family over the nature of “conservative jurisprudence.” Conservatives are united in taking as our coordinates the original meaning of the text of the Constitution. But some of us have argued for “a better originalism,” as opposed what we call the “truncated originalism” that has predominated. We see the latter as detached from the understanding that the American Founders, the true originalists, had of the moral ground of the Constitution and laws they were shaping.

And from later on:

In Roe v. Wade (1973), the lawyers defending the abortion laws of Texas drew on the most updated data from embryology, woven with principled reasoning, to show that the offspring in the womb had been nothing other than human from its first moments, that it was never merely a part of the mother. These lawyers acted, we might say, “naturally”: they sought to show why the laws of Texas were “justified” in casting their protections and displacing the personal freedom of a woman to destroy that small human being who was uniquely vulnerable to her care—and her power.

But none of that rich material made its way into the dissenting opinions by Justices Byron White and William Rehnquist, who were content to rely on the point that abortion was nowhere mentioned in the Constitution. If that is all the court can say—if there is no recognition of a child in the womb as a human life—then why would any state be justified in barring a pregnant woman from being rid of it? And why should she lose that freedom if she travels to another state? But if that offspring is never anything less than a human being, why should the court not engage the power it has used in the past when the protections of the law were withdrawn from a class of human beings and citizens within the separate states? A court that can’t settle its judgment here is simply giving us another chapter in a continuing story of incoherence.

I think Professor Arkes might be saying one of three things here (and elsewhere in pursuing this debate), but I’m not sure which:

(1) The framers had background understandings of morality and natural law that can help give meaning to vague or ambiguous words and phrases in the Constitution.  If that’s the claim, I think it’s just standard originalism and shouldn’t provoke any methodological debate (although of course particular applications of it might be debated).

(2) The framers had background understandings of morality and natural law that, while not directly incorporated into the Constitution, should still be available for judges to draw on in resolving constitutional cases.  Here I think most originalists would disagree.  I can see how this proposition might connect to the older idea of framers’ intent, but the Scalia-driven shift to focus on original meaning of the text I think precludes it.  Things that the Framers believed but aren’t in the Constitution aren’t part of the Constitution’s original meaning and so aren’t binding (and can’t be made binding by judges) on later generations that might want to change them.  The law of the Constitution arises from the words and phrases of the enacted Constitution, not from the framers’ moral vision untethered to the Constitution.

(3) There are principles of morality and natural law that are simply true (“truths that precede law”), irrespective of what the framers thought about them.  I don’t see how this is different from a morality-driven version of nonoriginalism. It’s not a competing version of originalism; it’s just not originalism (as Adrian Vermeule acknowledges).

NOTEThis post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

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