At National Review, Dan McLaughlin recently had a compelling takedown of the new push for “common good originalism.” That brand of originalism received a fuller explication yesterday in a joint statement at The American Mind from Hadley Arkes, Josh Hammer, Matthew Peterson and Garrett Snedeker. I’ll try to write about this in more detail in essay form, but the essential complaint against originalism is that it has failed to produce conservative policy ends. Originalism’s focus on text and intent rather than natural law earns its defenders the dreaded epithet of “positivist,” which is loosely, and wrongly, deployed as a synonym for “relativist.”
Setting aside the fact that these critiques appear to have been motivated by the Bostock decision on transgender rights, which was a statutory rather than a constitutional case—one of which I have been critical—the essential problem is their inattention to the question of authority. Robert Bork, who constitutional conservatives lionized in an apparently antiquated and bygone era, explained that judges are necessarily positivists because their job is the interpretation of law that others make. Lawmakers, by contrast, need not, and should not, be.
If common good originalism is going to claim the mantle of constitutionalism, its adherents must care about forms, not merely results. That is what distinguishes constitutional authority from mere imposition. If it does not matter who applies the natural law, we should recognize this strain of purportedly political thought as wholly apolitical, not least because it excuses citizens from the responsibility of contemplating questions of justice.
It may be worth noting that Thomistic natural law emphasizes the question of authority too. Aquinas’ essential distinction is between public and private authority. For his purposes, the legitimate legislative and judicial authorities are the same. Montesquieu’s full theorization of the separation of powers came later. But Aquinas teaches repeatedly that legitimate authority, not just desirable policies, matters.