NARRATOR: Thanks for joining this episode of the No. 86 lecture series, where we explore the method and purpose of Originalism. Today’s episode features Lee J. Strang, the John W. Stoepler Professor of Law and Values at University of Toledo College of Law. Professor Strang writes and teaches about Originalism, Constitutional Law, Property, and religion and the First Amendment. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: Before moving on to discuss how Originalism relates to Natural Law, I think it would be helpful to have a clearer understanding of what Originalism is and how it works. Most people think of Originalism as merely interpreting the Constitutional text in isolation from other factors. Can you explain how that is only partially accurate? LEE STRANG: It's often the case that when I give talks to civic groups that many of the people in the audience come to the event thinking that textualism and originalism are the same thing. And in the academic world, textualism, to the extent that it is a label for a theory of interpretation, is applied to the context of statutory interpretation and not constitutional interpretation, that there isn't a school of thought called textualism in the context of constitutional interpretation. And so I think what most often goes by the label of textualism in broader public discourse in the political context is often the label that's given to originalism in the context of constitutional interpretation. There is a way in which that label of textualism fits well with originalism because originalism's foundational commitment is to the text of the constitution, is to saying that that text and its meaning when it was adopted is the constitution's authoritative meaning. And that text doesn't change unless it's through the Article V amendment process. And that meaning doesn't change unless it's through the Article V amendment process or the way in which the constitution and originalism our texts focus and so the label of textualism is an appropriate label that one might give to originalism. But the reason why textualism isn't the best label for originalism is because that originalism doesn't just look at the text in the context of 2021 or in the context of when the interpreter is interpreting the text, what the originalist does, it looks at the public meaning of that text in a particular time period. So textualism has potential connotation of looking at the text meaning when the interpretation occurs and that's not what originalism does. It looks at the meaning when the text was ratified. PUBLIUS: It sounds simple to say that Originalism “looks at the meaning when the text was ratified.” How does one arrive at that meaning? Do Originalists always arrive at the same interpretation results? LEE STRANG: In the United States today, there are a number of competing theories of interpretation. Originalism is one of the competing theories about how to interpret the constitution. And by many accounts, it's probably the dominant theory of interpretation today. Stated briefly, originalism is the idea that the Constitution's meaning is fixed at a particular period of time, second, that the Constitution's meaning contributes to constitutional law, and then third, that that original meaning constrains the resultant constitutional law. So let me cash that out in brief. So first, the Constitution's fixed meaning is the meaning at the time the text was ratified. And there are different originalist theories about what is that meaning. There are versions of original meaning, original intent, original understanding, original law originalism. And then the second proposition is that that original meaning contributes to constitutional law. And what that means is that when officers in the federal or state governments are acting in a way that the Constitution governs their activities, and in particular, when judges are acting in that way, judges should utilize the original meaning and it should contribute to how those officers act, how those judges rule. And then lastly, that original meaning shouldn't just contribute, it should actually constrain how those officers act. That Congress is authorized under Article I Section 8, to exercise certain powers, and Congress should exercise those powers and not go beyond those powers. Federal judges should exercise the judicial power and interpret the Constitution's original meaning and not utilize some other meaning in interpreting the Constitution. So originalism is the confluence of three different propositions. First, that the Constitution's original meaning is fixed at the time of ratification, second, that meaning contributes to the acts of officials, including constitutional law, and third, that that original meaning constrains the acts of officials, including constitutional law. PUBLIUS: In your view, is the original meaning always informed by the Natural Law tradition? What is the relationship between Originalism and Natural Law? LEE STRANG: There's a number of different ways of looking at the question of whether and in what way there's a relationship between originalism and natural law. So on one level, originalism is the proposition that the Constitution's original meaning is the public meaning of its texts when it was ratified. And to be able to understand that proposition, to be able to follow and implement that proposition either as a scholar, or a lawyer, or a judge doesn't require one to believe or not believe in natural law. So there's one level in which originalism is independent of the natural law tradition. There's another level in which originalism, I think, is actually made more clear, more understandable, indeed, more attractive within the natural law tradition, and I'll it give two examples. So one is that originalism is a way of interpreting the Constitution, but we need reasons as to why we should interpret the Constitution one way rather than an alternative way. Why should we choose originalism and the original meaning as opposed to the living Constitution and a living constitutional meaning? And the natural law tradition provides a reason for that. The reason that the natural law tradition provides is that originalism is the meaning of the positive law of our legal system, and that positive law more or less, but basically well, is able to provide the circumstances in which members of our political community, Americans generally, are able to live their lives with reasonable dignity. It pursues the common good reasonably effectively. And that's a reason for officials, including judges, to say, I'm going to follow the Constitution's original meaning. So that's one way in which I think the natural law tradition helps understand and explain originalism in a way that one would otherwise not be able to. A second aspect of the natural law tradition that I think helps make originalism even more attractive is that it explains some of the features that we all recognize as existing, but maybe don't understand the full import or the full reason behind those features. So one of those features is stare decisis. For a long time, originalists have had a challenging relationship with stare decisis, and in particular, I think that's partially a phenomenon of the historical development of American constitutional law, where especially beginning in the New Deal period, there has been a large part of American constitutional law as articulated by the Supreme Court that is inconsistent with the Constitution's original meaning. This is often called the problem of non-originalist precedent. And so originalists, for the most part, had maybe a tense or hostile relationship to precedent stare decisis. And there's also another, I think even deeper, reason why originalists haven't addressed the relationship between originalism and stare decisis. And that is that if you look at originalism's core commitments, which is the meaning of the Constitution is fixed at a particular period of time and that officers should follow that meaning whenever they're interpreting the Constitution, acting pursuant to it, there doesn't seem to be any role for precedent or stare decisis in that process, in that theoretical structure. And I think what the natural law tradition does is it allows you to say, "What's the point of the Constitution, and what's the point of the original meaning of the Constitution?" In the natural law tradition, it's to secure the common good of the American people. But one of the things that one can see once one looks at the Constitution's original meaning is that the original meaning by itself couldn't do an effective job of that. The original meaning is too sparse. The original meaning is vague enough where reasonable people will disagree about what it means in a particular case. So the Constitution wisely has alternative mechanisms, additional mechanisms of providing for the social coordination that's needed in order for the common good to be secured, and stare decisis is that key mechanism of our constitutional system. So the natural law tradition, because it sees that the goal of the Constitution is the effective coordination of the American people to secure the common good, and that the original meaning by itself would do a poor job of it, is able to look at stare decisis as not just an extrinsic add-on that the American framers and ratifiers adopted because of the English legal tradition, but, in fact, as a fundamental way, a fundamental mechanism for the Constitution to implement, to build out the legal system in order to more effectively secure social coordination. PUBLIUS: That’s an interesting point. How to handle precedent is sometimes a problem for Originalists. You make it sound less like a problem and more like a benefit. Do you have anything to add on that topic? What do you do with non-Originalist precedents? LEE STRANG: So my view is that stare decisis is a feature and not a bug of the American constitutional system. And I think it's because of the natural law tradition that that aspect of stare decisis as being an essential element of the Constitution being implemented in our community, one is able to see that more clearly. But there's also another side of stare decisis, one that I mentioned earlier, which is that there's a large body of non-originalist precedent, and does the natural law tradition tell us anything about that? I think it actually tells us a couple of things. So one is that if it is the case that the original meaning is the Constitution's authoritative meaning because it enables the American legal system and Americans to effectively secure the common good, then that means that decisions and official actions, like precedence, that deviate from the original meaning are, to that degree, undermining the ability of the United States to secure the common good. So that puts non-originalist precedent intention with the commitment of the Constitution and with the natural law perspective on the Constitution. But I think there's a second way in which the natural law tradition gives us input into non-originalist precedent. And that is, think about what the reason for stare decisis is. So if you've had first year courses in law school, you read a lot of cases, and you know already that American judges in the American legal system care a lot about stare decisis. And the reason why American lawyers and judges care about stare decisis is that it's a valuable tool for the legal system to provide for modest, incremental, prudential change. So it's actually an important aspect of our legal system that allows us to preserve the rule of law and stability while still allowing for change in response to new circumstances. But a key aspect of stare decisis is that even if there's a decision that judges are confident was wrong, or confident later it was wrong when it was decided, what stare decisis means is that you don't lightly overrule that decision. And if stare decisis, as I've argued, is itself a valuable component of the rule of law, which is a valuable component of the common good, then that suggests that originalism should be hesitant to overrule all non-originalist precedents because of the value of the stability that even an incorrect decision is able to provide to the legal system. So you have an incorrect decision that although wrong, and therefore in some way impeding the pursuit of the common good itself, has been in existence for some period of time itself, has developed people's reliance interests on it. People have coordinated their lives on the assumption that that precedent is going to be there, therefore that counsel's being cautious about overruling all non-originalist precedent. Let me give you an example. So after the Civil War, there were a series of cases challenging the constitutionality of paper money. The United States federal government, for the first time during the Civil War, issued paper money, it was called greenbacks, colloquially. And there was a constitutional issue about its constitutionality, because Article I Section 8 authorizes Congress to "coin money." And that seems to have been, when you look at the history, a conscious choice by the framers as a way to require the federal government to use metallic tokens for money and not paper money because of the perceived negativity, the inflationary negativity, of paper money. There were a series of cases by the Supreme Court called the Legal Tender Cases where ultimately, after a bunch of give-and-take, the Supreme Court upheld the constitutionality of paper money, and the United States has ever since then. Those decisions were rendered after the Civil War have been around for over 130 years, and those decisions are deeply entrenched in the American legal system. So even if those decisions are incorrect and therefore, to some degree, impeded the ability of our legal system to achieve the coordination of the common good, they've been around for so long, and there are so many reliance interests built up upon them, that overruling them would cause some harm to the social coordination required for the common good. And in light of the natural law tradition, that suggests that originalism should be cautious about overruling such deeply entrenched and longstanding non-originalist precedents. PUBLIUS: You’ve made a good case for how Natural Law can effectively supplement Originalism. Do you have to be a proponent of Natural Law in order to be a good Originalist? LEE STRANG: One does not need to believe in natural law in order to be an originalist in the same way that one doesn't need to believe in natural law in order to be an effective American lawyer. So one can learn all the American property law doctrines and not hear one proposition about natural law, and still be an effective lawyer. But I think, and this is the claim that I make in my book, that if one is committed to the natural law tradition, one is able to, in a way, better understand the facets of the original meaning of the Constitution, or the Constitution or property law doctrines. So it's not that one has to be a natural lawyer in order to be an originalist or an American lawyer, but that being a natural lawyer helps one be the best originalist and best understand the Constitution, the best lawyer that one can be, in his or her understanding of property law. In fact, if you look at the scholarship and arguments in favor and about originalism by people who characterize themselves as originalists, what you see is that all or almost all of them do not rely on propositions of natural law, and many of them do not claim to believe in natural law. So for example, for a long period of time, the most powerful normative argument in favor of originalism was put forward by Keith Whittington, a scholar at Princeton. And Whittington's argument was basically that consistently followed originalism is going to facilitate the popular sovereignty of the American people. Now, putting aside the merits to that claim, that claim is entirely independent of natural law and natural law propositions. And there are many other aspects of originalism, such as debates between original meaning originalism and original intent originalism, which don't seem to hang on, or don't seem to hinge on, one's commitment to, or lack of commitment to, the natural law tradition. So it is the case that most originalists are not committed to the natural law tradition. The claim that I think is the case is that one is better able to understand some core aspects of the American legal system, and one is better able to understand or provide a better, sounder reason for the normativity of the American Constitution and its original meaning if one believes in the natural law tradition. PUBLIUS: In addition to the Natural Law tradition, there are other perspectives that can be used to augment or supplement Originalism. Can you talk about virtue ethics? What does that mean and does it have any bearing on Originalist methodology? LEE STRANG: Okay. Virtue ethics is the perspective on ethics that says that how one should act is determined by what somebody with the appropriate virtues would act in that given situation. Virtue ethics applies not just to us in our ethical lives, it also applies to different offices and different activities. So virtue jurisprudence is the theory that describes what are the characteristics of an excellent judge. And judges who have those characteristics are going to be the best judges that they can be even in relatively trying circumstances. So how does virtue ethics and virtue jurisprudence help originalism? I think there are two ways to look at it. First, one of the criticisms of originalism has been that as originalism has acknowledged that there are situations in which the original meaning is under-determined, which is it doesn't answer all constitutional questions, one of the criticisms has been that you're just like living constitutionalists where judges allegedly are just making up answers based on their own policy views or personal predilections. And by coupling virtue ethics and virtue jurisprudence to originalism, originalists are able to have a response to that question, which is acknowledging the indeterminacy, but at the same time, because the judges have the characteristics of excellent judges, they are able to see what the law requires them to do, the space in which they do have some choice, and then with the other virtues in particular of practical wisdom, able to craft, able to construct the best constitutional law for the country going forward in that area. So virtue ethics, actually, and virtue jurisprudence help make originalism more normatively attractive, having better outcomes in the cases. And I think virtue ethics also helps originalism better fit our existing legal practice. When you look at one of the criticisms of originalism, which is that originalism is so much different than what our normal American legal practice is, one of the ways in which virtue ethics helps originalism become more like our existing legal practice is by characterizing judges as engaged in a particular craft. So when we think of excellent judges, you may have seen this in your first year law school courses, there are certain judges who write opinions well, who write opinions persuasively, who have elegant rhetoric, who have powerful arguments. And virtue ethics helps us look at judges within the originalist paradigm as needing those characteristics in order to be excellent judges in general, but also excellent judges when it comes to identifying and implementing the Constitution's original meaning. One way, I think, that helps us understand how virtue ethics helps make originalism more attractive and more accurate is to think about an opinion, a constitutional opinion that you've read that you found to be especially powerful, especially well-presented, especially well-argued. And one of the opinions that, as a constitutional law teacher, I both love and then don't love to teach is the concurrence by Justice Thomas in the 1995 decision United States versus Lopez. United States versus Lopez dealt with the issue of does Congress, under the Commerce Clause, have the authority to bar possession of guns within a school zone. And so the question was whether or not the Commerce Clause extended that far. Justice Thomas, in an extended concurrence, which is why it's challenging to teach in one class because it's such a deep, and detailed, and thoughtful, and powerfully argued opinion, Justice Thomas lays out the case for the original meaning of the Commerce Clause, ties it to originalist precedent under the Commerce Clause, and characterizes it as intention with non-originalist precedent under the Commerce Clause. So I think that is an example of an opinion that was written by a justice who was at his peak in that argument that Justice Thomas made. So I think if you can think of the excellent originalist opinions that you have or will read, that shows how originalism has improved versus what the alternative might have been, a less well-argued, a less perspicacious, a less persuasive opinion written by a judge without those same judicial virtues. PUBLIUS: So Originalism can be improved by virtue ethics, or virtue jurisprudence. Is the opposite also true - is virtue jurisprudence improved by the method of Originalism? LEE STRANG: Virtue jurisprudence is the idea that a judge judges best when that judge has the judicial virtues, the virtues of justice, lawfulness and practical wisdom and others. Virtue jurisprudence, I think, helps originalism become a better theory of interpretation, both by making it result in outcomes that are more normatively attractive, and also by making it better fit with Americans' conceptions of how judges judge, or how judges should judge. But that's not to say that the judicial virtues couldn't apply to other theories of interpretation. And in fact, I think it is a widespread phenomenon for people of a variety of different interpretive perspectives to agree that all of us being equal, we want judges who are temperate, who have judicial temperament, judges who are courageous, judges who have the intellectual firepower to master the law. The judicial virtue that may be difficult for non-originalist judges to adopt might be the virtue of justice as lawfulness, because the virtue of justice as lawfulness describes the key aspect of judging, which is that a judge decides the case pursuant to the existing law. And if the judge in that case is actually changing the law, then that judge would not be exercising the virtue of judicial lawfulness. In fact, under Aristotle's terminology, that judge would be issuing a decree because it's a new legal pronouncement based on non-preexisting law. That judge might actually be, in Aristotle's terminology, a tyrant. Now, I think a living constitutionalist could respond to this potential critique by saying that the legal system in fact, is not an originalist legal system, and therefore the judge and everybody in the legal system knows that the judge isn't just relying on the original meaning, and that the judge is relying on other inputs as to what the law is, and maybe the law, what had already been changed, when the judge had issued his or her decision. So to give a concrete example, in Home Building & Loan versus Blaisdell, the Supreme Court was faced with the question of whether or not Minnesota's moratorium and mortgage foreclosures violated the Contracts Clause. The Contracts Clause was adopted in 1789, and it was put into the Constitution because the framers and ratifiers looked around and they saw states passing what was called debtor relief legislation. There would be people who'd be debtors and creditors, and the state legislature would pass a statute that either eliminated the debt, or what happened more frequently, made the debt less valuable. So instead of being paid back in gold specie, the debt could be paid back in currency, and the framers thought that that was a bad practice and undermined public confidence. And the Minnesota Moratorium did exactly that. The Minnesota Mortgage Moratorium exactly undermined the value of the debt held by the Building & Loan company. The US Supreme Court decided that even though the Contracts Clause forbid the impairment of obligation of contracts, that the mortgage law did not impair the obligation of contracts. Under the originalist view, that would be a violation of the virtue of justice as lawfulness, because it was clear that the Contracts Clause prohibited exactly what the Minnesota law was doing. But I think a living constitutionalist might say that the original meaning isn't the only aspect of what counts as the meaning of the Contracts Clause. So a living constitutionalist might argue that by the time Blaisdell was decided, that the American people revised their understanding of what it meant to impair an obligation of contract, and like the Blaisdell court, said that a limitation on a contract for a really good reason, like a great depression, was, in fact, not an impairment of the obligation, or at least not an unconstitutional impairment of the obligation of contracts. So I think that a living constitutionalist as well would want to, and I think have some ability to, claim the mantle of being consistent with the virtue of justice as lawfulness. So I think it's a long way of saying I think everybody can use them, can use those virtues. PUBLIUS: Does Originalism make certain assumptions about human nature or society? If so, are those assumptions different from the premises of other interpretive methodologies? LEE STRANG: It is the case that there tends to be a correlation between one's view about human nature and one's view about constitutional interpretation that as a general matter, most originalists tend to be of the perspective that human nature is mixed, that sometimes we can do great things, and sometimes we can do incredibly wicked things, and that most of us, most of the time, do things in the middle. And this is reflected in the framers and ratifiers. So James Madison, in Federalist 10, famously talked about the nature of human beings, that we're not all angels, and so we need a government that is able to constrain human beings, but also one that is itself constrained. So originalism tends to be skeptical of having grand views about the capacity of federal judges to see what's good, and then to pursue and implement what's good. So that does seem to be a general trend among originalists. At the same time, it does appear to be the case that many living constitutionalists tend to have a more robust view about the capacities and abilities of federal judges to both see what's right, and then to pursue what's right. Perhaps the most famous example was the writing of the late legal philosopher, Ronald Dworkin, who invented a heroic judge named Hercules. And Hercules was a brilliant judge with lots of time and a brilliant insight into what actually was the case, what actually was true and good for human beings, and then through his interpretations of the Constitution, was able to implement them for the betterment of the American people. So it does seem like there is often the case these different fundamental perspectives on human nature that do seem to have inputs into the different theories of interpretation. But I also don't think that it's clean-cut either. So for example, one strain of originalism, the strain that I think currently goes by the label judicial engagement, tends to also have a pretty robust view about the capacities of federal judges. The judicial engagement folks tend to view the key role of federal judges as constraining the more popular aspects of either the state or the federal government, and so they view federal judges as both having the capacity to identify the Constitution's original meaning, having the capacity to implement it in the face of popular pressure, and then having the capacity, I think, also to limit themselves and to not aggrandize their own power. So that seems to be a strain of originalism that takes a less limited view of human nature. And there are certainly versions of living constitutionalism as well that are skeptical of the capacities of human beings in general and judges in particular. In fact, there are versions of living constitutionalism that want strong deference to popular judgments, not because the proponents of these views think that popular judgments are somehow magically imbued with correct insight, but with a more mundane argument, in fact, an Aristotelian argument, that the multitude is more likely correct more often than just a few human beings who are isolated, like Supreme Court justices or federal judges are. So I think there's probably a general trend regarding human nature playing into which theory of interpretation one has, but the debates over constitutional interpretation are so nuanced and so complex that it's hard, I think, to paint with a firm brush over the entire field. NARRATOR: Thank you for listening to this episode of the No. 86 Lecture series on Property Law. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class! TRANSCRIPT - VERBATIM FOR YOUTUBE Thanks for joining this episode of the No. 86 lecture series, where we explore the method and purpose of Originalism. Today’s episode features Lee J. Strang, the John W. Stoepler Professor of Law and Values at University of Toledo College of Law. Professor Strang writes and teaches about Originalism, Constitutional Law, Property, and religion and the First Amendment. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. Before moving on to discuss how Originalism relates to Natural Law, I think it would be helpful to have a clearer understanding of what Originalism is and how it works. Most people think of Originalism as merely interpreting the Constitutional text in isolation from other factors. Can you explain how that is only partially accurate? It's often the case that when I give talks to civic groups that many of the people in the audience come to the event thinking that textualism and originalism are the same thing. And in the academic world, textualism, to the extent that it is a label for a theory of interpretation, is applied to the context of statutory interpretation and not constitutional interpretation, that there isn't a school of thought called textualism in the context of constitutional interpretation. And so I think what most often goes by the label of textualism in broader public discourse in the political context is often the label that's given to originalism in the context of constitutional interpretation. There is a way in which that label of textualism fits well with originalism because originalism's foundational commitment is to the text of the constitution, is to saying that that text and its meaning when it was adopted is the constitution's authoritative meaning. And that text doesn't change unless it's through the Article V amendment process. And that meaning doesn't change unless it's through the Article V amendment process or the way in which the constitution and originalism our texts focus and so the label of textualism is an appropriate label that one might give to originalism. But the reason why textualism isn't the best label for originalism is because that originalism doesn't just look at the text in the context of 2021 or in the context of when the interpreter is interpreting the text, what the originalist does, it looks at the public meaning of that text in a particular time period. So textualism has potential connotation of looking at the text meaning when the interpretation occurs and that's not what originalism does. It looks at the meaning when the text was ratified. It sounds simple to say that Originalism “looks at the meaning when the text was ratified.” How does one arrive at that meaning? Do Originalists always arrive at the same interpretation results? In the United States today, there are a number of competing theories of interpretation. Originalism is one of the competing theories about how to interpret the constitution. And by many accounts, it's probably the dominant theory of interpretation today. Stated briefly, originalism is the idea that the Constitution's meaning is fixed at a particular period of time, second, that the Constitution's meaning contributes to constitutional law, and then third, that that original meaning constrains the resultant constitutional law. So let me cash that out in brief. So first, the Constitution's fixed meaning is the meaning at the time the text was ratified. And there are different originalist theories about what is that meaning. There are versions of original meaning, original intent, original understanding, original law originalism. And then the second proposition is that that original meaning contributes to constitutional law. And what that means is that when officers in the federal or state governments are acting in a way that the Constitution governs their activities, and in particular, when judges are acting in that way, judges should utilize the original meaning and it should contribute to how those officers act, how those judges rule. And then lastly, that original meaning shouldn't just contribute, it should actually constrain how those officers act. That Congress is authorized under Article I Section 8, to exercise certain powers, and Congress should exercise those powers and not go beyond those powers. Federal judges should exercise the judicial power and interpret the Constitution's original meaning and not utilize some other meaning in interpreting the Constitution. So originalism is the confluence of three different propositions. First, that the Constitution's original meaning is fixed at the time of ratification, second, that meaning contributes to the acts of officials, including constitutional law, and third, that that original meaning constrains the acts of officials, including constitutional law. In your view, is the original meaning always informed by the Natural Law tradition? What is the relationship between Originalism and Natural Law? There's a number of different ways of looking at the question of whether and in what way there's a relationship between originalism and natural law. So on one level, originalism is the proposition that the Constitution's original meaning is the public meaning of its texts when it was ratified. And to be able to understand that proposition, to be able to follow and implement that proposition either as a scholar, or a lawyer, or a judge doesn't require one to believe or not believe in natural law. So there's one level in which originalism is independent of the natural law tradition. There's another level in which originalism, I think, is actually made more clear, more understandable, indeed, more attractive within the natural law tradition, and I'll it give two examples. So one is that originalism is a way of interpreting the Constitution, but we need reasons as to why we should interpret the Constitution one way rather than an alternative way. Why should we choose originalism and the original meaning as opposed to the living Constitution and a living constitutional meaning? And the natural law tradition provides a reason for that. The reason that the natural law tradition provides is that originalism is the meaning of the positive law of our legal system, and that positive law more or less, but basically well, is able to provide the circumstances in which members of our political community, Americans generally, are able to live their lives with reasonable dignity. It pursues the common good reasonably effectively. And that's a reason for officials, including judges, to say, I'm going to follow the Constitution's original meaning. So that's one way in which I think the natural law tradition helps understand and explain originalism in a way that one would otherwise not be able to. A second aspect of the natural law tradition that I think helps make originalism even more attractive is that it explains some of the features that we all recognize as existing, but maybe don't understand the full import or the full reason behind those features. So one of those features is stare decisis. For a long time, originalists have had a challenging relationship with stare decisis, and in particular, I think that's partially a phenomenon of the historical development of American constitutional law, where especially beginning in the New Deal period, there has been a large part of American constitutional law as articulated by the Supreme Court that is inconsistent with the Constitution's original meaning. This is often called the problem of non-originalist precedent. And so originalists, for the most part, had maybe a tense or hostile relationship to precedent stare decisis. And there's also another, I think even deeper, reason why originalists haven't addressed the relationship between originalism and stare decisis. And that is that if you look at originalism's core commitments, which is the meaning of the Constitution is fixed at a particular period of time and that officers should follow that meaning whenever they're interpreting the Constitution, acting pursuant to it, there doesn't seem to be any role for precedent or stare decisis in that process, in that theoretical structure. And I think what the natural law tradition does is it allows you to say, "What's the point of the Constitution, and what's the point of the original meaning of the Constitution?" In the natural law tradition, it's to secure the common good of the American people. But one of the things that one can see once one looks at the Constitution's original meaning is that the original meaning by itself couldn't do an effective job of that. The original meaning is too sparse. The original meaning is vague enough where reasonable people will disagree about what it means in a particular case. So the Constitution wisely has alternative mechanisms, additional mechanisms of providing for the social coordination that's needed in order for the common good to be secured, and stare decisis is that key mechanism of our constitutional system. So the natural law tradition, because it sees that the goal of the Constitution is the effective coordination of the American people to secure the common good, and that the original meaning by itself would do a poor job of it, is able to look at stare decisis as not just an extrinsic add-on that the American framers and ratifiers adopted because of the English legal tradition, but, in fact, as a fundamental way, a fundamental mechanism for the Constitution to implement, to build out the legal system in order to more effectively secure social coordination. That’s an interesting point. How to handle precedent is sometimes a problem for Originalists. You make it sound less like a problem and more like a benefit. Do you have anything to add on that topic? What do you do with non-Originalist precedents? So my view is that stare decisis is a feature and not a bug of the American constitutional system. And I think it's because of the natural law tradition that that aspect of stare decisis as being an essential element of the Constitution being implemented in our community, one is able to see that more clearly. But there's also another side of stare decisis, one that I mentioned earlier, which is that there's a large body of non-originalist precedent, and does the natural law tradition tell us anything about that? I think it actually tells us a couple of things. So one is that if it is the case that the original meaning is the Constitution's authoritative meaning because it enables the American legal system and Americans to effectively secure the common good, then that means that decisions and official actions, like precedence, that deviate from the original meaning are, to that degree, undermining the ability of the United States to secure the common good. So that puts non-originalist precedent intention with the commitment of the Constitution and with the natural law perspective on the Constitution. But I think there's a second way in which the natural law tradition gives us input into non-originalist precedent. And that is, think about what the reason for stare decisis is. So if you've had first year courses in law school, you read a lot of cases, and you know already that American judges in the American legal system care a lot about stare decisis. And the reason why American lawyers and judges care about stare decisis is that it's a valuable tool for the legal system to provide for modest, incremental, prudential change. So it's actually an important aspect of our legal system that allows us to preserve the rule of law and stability while still allowing for change in response to new circumstances. But a key aspect of stare decisis is that even if there's a decision that judges are confident was wrong, or confident later it was wrong when it was decided, what stare decisis means is that you don't lightly overrule that decision. And if stare decisis, as I've argued, is itself a valuable component of the rule of law, which is a valuable component of the common good, then that suggests that originalism should be hesitant to overrule all non-originalist precedents because of the value of the stability that even an incorrect decision is able to provide to the legal system. So you have an incorrect decision that although wrong, and therefore in some way impeding the pursuit of the common good itself, has been in existence for some period of time itself, has developed people's reliance interests on it. People have coordinated their lives on the assumption that that precedent is going to be there, therefore that counsel's being cautious about overruling all non-originalist precedent. Let me give you an example. So after the Civil War, there were a series of cases challenging the constitutionality of paper money. The United States federal government, for the first time during the Civil War, issued paper money, it was called greenbacks, colloquially. And there was a constitutional issue about its constitutionality, because Article I Section 8 authorizes Congress to "coin money." And that seems to have been, when you look at the history, a conscious choice by the framers as a way to require the federal government to use metallic tokens for money and not paper money because of the perceived negativity, the inflationary negativity, of paper money. There were a series of cases by the Supreme Court called the Legal Tender Cases where ultimately, after a bunch of give-and-take, the Supreme Court upheld the constitutionality of paper money, and the United States has ever since then. Those decisions were rendered after the Civil War have been around for over 130 years, and those decisions are deeply entrenched in the American legal system. So even if those decisions are incorrect and therefore, to some degree, impeded the ability of our legal system to achieve the coordination of the common good, they've been around for so long, and there are so many reliance interests built up upon them, that overruling them would cause some harm to the social coordination required for the common good. And in light of the natural law tradition, that suggests that originalism should be cautious about overruling such deeply entrenched and longstanding non-originalist precedents. You’ve made a good case for how Natural Law can effectively supplement Originalism. Do you have to be a proponent of Natural Law in order to be a good Originalist? One does not need to believe in natural law in order to be an originalist in the same way that one doesn't need to believe in natural law in order to be an effective American lawyer. So one can learn all the American property law doctrines and not hear one proposition about natural law, and still be an effective lawyer. But I think, and this is the claim that I make in my book, that if one is committed to the natural law tradition, one is able to, in a way, better understand the facets of the original meaning of the Constitution, or the Constitution or property law doctrines. So it's not that one has to be a natural lawyer in order to be an originalist or an American lawyer, but that being a natural lawyer helps one be the best originalist and best understand the Constitution, the best lawyer that one can be, in his or her understanding of property law. In fact, if you look at the scholarship and arguments in favor and about originalism by people who characterize themselves as originalists, what you see is that all or almost all of them do not rely on propositions of natural law, and many of them do not claim to believe in natural law. So for example, for a long period of time, the most powerful normative argument in favor of originalism was put forward by Keith Whittington, a scholar at Princeton. And Whittington's argument was basically that consistently followed originalism is going to facilitate the popular sovereignty of the American people. Now, putting aside the merits to that claim, that claim is entirely independent of natural law and natural law propositions. And there are many other aspects of originalism, such as debates between original meaning originalism and original intent originalism, which don't seem to hang on, or don't seem to hinge on, one's commitment to, or lack of commitment to, the natural law tradition. So it is the case that most originalists are not committed to the natural law tradition. The claim that I think is the case is that one is better able to understand some core aspects of the American legal system, and one is better able to understand or provide a better, sounder reason for the normativity of the American Constitution and its original meaning if one believes in the natural law tradition. In addition to the Natural Law tradition, there are other perspectives that can be used to augment or supplement Originalism. Can you talk about virtue ethics? What does that mean and does it have any bearing on Originalist methodology? Okay. Virtue ethics is the perspective on ethics that says that how one should act is determined by what somebody with the appropriate virtues would act in that given situation. Virtue ethics applies not just to us in our ethical lives, it also applies to different offices and different activities. So virtue jurisprudence is the theory that describes what are the characteristics of an excellent judge. And judges who have those characteristics are going to be the best judges that they can be even in relatively trying circumstances. So how does virtue ethics and virtue jurisprudence help originalism? I think there are two ways to look at it. First, one of the criticisms of originalism has been that as originalism has acknowledged that there are situations in which the original meaning is under-determined, which is it doesn't answer all constitutional questions, one of the criticisms has been that you're just like living constitutionalists where judges allegedly are just making up answers based on their own policy views or personal predilections. And by coupling virtue ethics and virtue jurisprudence to originalism, originalists are able to have a response to that question, which is acknowledging the indeterminacy, but at the same time, because the judges have the characteristics of excellent judges, they are able to see what the law requires them to do, the space in which they do have some choice, and then with the other virtues in particular of practical wisdom, able to craft, able to construct the best constitutional law for the country going forward in that area. So virtue ethics, actually, and virtue jurisprudence help make originalism more normatively attractive, having better outcomes in the cases. And I think virtue ethics also helps originalism better fit our existing legal practice. When you look at one of the criticisms of originalism, which is that originalism is so much different than what our normal American legal practice is, one of the ways in which virtue ethics helps originalism become more like our existing legal practice is by characterizing judges as engaged in a particular craft. So when we think of excellent judges, you may have seen this in your first year law school courses, there are certain judges who write opinions well, who write opinions persuasively, who have elegant rhetoric, who have powerful arguments. And virtue ethics helps us look at judges within the originalist paradigm as needing those characteristics in order to be excellent judges in general, but also excellent judges when it comes to identifying and implementing the Constitution's original meaning. One way, I think, that helps us understand how virtue ethics helps make originalism more attractive and more accurate is to think about an opinion, a constitutional opinion that you've read that you found to be especially powerful, especially well-presented, especially well-argued. And one of the opinions that, as a constitutional law teacher, I both love and then don't love to teach is the concurrence by Justice Thomas in the 1995 decision United States versus Lopez. United States versus Lopez dealt with the issue of does Congress, under the Commerce Clause, have the authority to bar possession of guns within a school zone. And so the question was whether or not the Commerce Clause extended that far. Justice Thomas, in an extended concurrence, which is why it's challenging to teach in one class because it's such a deep, and detailed, and thoughtful, and powerfully argued opinion, Justice Thomas lays out the case for the original meaning of the Commerce Clause, ties it to originalist precedent under the Commerce Clause, and characterizes it as intention with non-originalist precedent under the Commerce Clause. So I think that is an example of an opinion that was written by a justice who was at his peak in that argument that Justice Thomas made. So I think if you can think of the excellent originalist opinions that you have or will read, that shows how originalism has improved versus what the alternative might have been, a less well-argued, a less perspicacious, a less persuasive opinion written by a judge without those same judicial virtues. So Originalism can be improved by virtue ethics, or virtue jurisprudence. Is the opposite also true - is virtue jurisprudence improved by the method of Originalism? Virtue jurisprudence is the idea that a judge judges best when that judge has the judicial virtues, the virtues of justice, lawfulness and practical wisdom and others. Virtue jurisprudence, I think, helps originalism become a better theory of interpretation, both by making it result in outcomes that are more normatively attractive, and also by making it better fit with Americans' conceptions of how judges judge, or how judges should judge. But that's not to say that the judicial virtues couldn't apply to other theories of interpretation. And in fact, I think it is a widespread phenomenon for people of a variety of different interpretive perspectives to agree that all of us being equal, we want judges who are temperate, who have judicial temperament, judges who are courageous, judges who have the intellectual firepower to master the law. The judicial virtue that may be difficult for non-originalist judges to adopt might be the virtue of justice as lawfulness, because the virtue of justice as lawfulness describes the key aspect of judging, which is that a judge decides the case pursuant to the existing law. And if the judge in that case is actually changing the law, then that judge would not be exercising the virtue of judicial lawfulness. In fact, under Aristotle's terminology, that judge would be issuing a decree because it's a new legal pronouncement based on non-preexisting law. That judge might actually be, in Aristotle's terminology, a tyrant. Now, I think a living constitutionalist could respond to this potential critique by saying that the legal system in fact, is not an originalist legal system, and therefore the judge and everybody in the legal system knows that the judge isn't just relying on the original meaning, and that the judge is relying on other inputs as to what the law is, and maybe the law, what had already been changed, when the judge had issued his or her decision. So to give a concrete example, in Home Building & Loan versus Blaisdell, the Supreme Court was faced with the question of whether or not Minnesota's moratorium and mortgage foreclosures violated the Contracts Clause. The Contracts Clause was adopted in 1789, and it was put into the Constitution because the framers and ratifiers looked around and they saw states passing what was called debtor relief legislation. There would be people who'd be debtors and creditors, and the state legislature would pass a statute that either eliminated the debt, or what happened more frequently, made the debt less valuable. So instead of being paid back in gold specie, the debt could be paid back in currency, and the framers thought that that was a bad practice and undermined public confidence. And the Minnesota Moratorium did exactly that. The Minnesota Mortgage Moratorium exactly undermined the value of the debt held by the Building & Loan company. The US Supreme Court decided that even though the Contracts Clause forbid the impairment of obligation of contracts, that the mortgage law did not impair the obligation of contracts. Under the originalist view, that would be a violation of the virtue of justice as lawfulness, because it was clear that the Contracts Clause prohibited exactly what the Minnesota law was doing. But I think a living constitutionalist might say that the original meaning isn't the only aspect of what counts as the meaning of the Contracts Clause. So a living constitutionalist might argue that by the time Blaisdell was decided, that the American people revised their understanding of what it meant to impair an obligation of contract, and like the Blaisdell court, said that a limitation on a contract for a really good reason, like a great depression, was, in fact, not an impairment of the obligation, or at least not an unconstitutional impairment of the obligation of contracts. So I think that a living constitutionalist as well would want to, and I think have some ability to, claim the mantle of being consistent with the virtue of justice as lawfulness. So I think it's a long way of saying I think everybody can use them, can use those virtues. Does Originalism make certain assumptions about human nature or society? If so, are those assumptions different from the premises of other interpretive methodologies? It is the case that there tends to be a correlation between one's view about human nature and one's view about constitutional interpretation that as a general matter, most originalists tend to be of the perspective that human nature is mixed, that sometimes we can do great things, and sometimes we can do incredibly wicked things, and that most of us, most of the time, do things in the middle. And this is reflected in the framers and ratifiers. So James Madison, in Federalist 10, famously talked about the nature of human beings, that we're not all angels, and so we need a government that is able to constrain human beings, but also one that is itself constrained. So originalism tends to be skeptical of having grand views about the capacity of federal judges to see what's good, and then to pursue and implement what's good. So that does seem to be a general trend among originalists. At the same time, it does appear to be the case that many living constitutionalists tend to have a more robust view about the capacities and abilities of federal judges to both see what's right, and then to pursue what's right. Perhaps the most famous example was the writing of the late legal philosopher, Ronald Dworkin, who invented a heroic judge named Hercules. And Hercules was a brilliant judge with lots of time and a brilliant insight into what actually was the case, what actually was true and good for human beings, and then through his interpretations of the Constitution, was able to implement them for the betterment of the American people. So it does seem like there is often the case these different fundamental perspectives on human nature that do seem to have inputs into the different theories of interpretation. But I also don't think that it's clean-cut either. So for example, one strain of originalism, the strain that I think currently goes by the label judicial engagement, tends to also have a pretty robust view about the capacities of federal judges. The judicial engagement folks tend to view the key role of federal judges as constraining the more popular aspects of either the state or the federal government, and so they view federal judges as both having the capacity to identify the Constitution's original meaning, having the capacity to implement it in the face of popular pressure, and then having the capacity, I think, also to limit themselves and to not aggrandize their own power. So that seems to be a strain of originalism that takes a less limited view of human nature. And there are certainly versions of living constitutionalism as well that are skeptical of the capacities of human beings in general and judges in particular. In fact, there are versions of living constitutionalism that want strong deference to popular judgments, not because the proponents of these views think that popular judgments are somehow magically imbued with correct insight, but with a more mundane argument, in fact, an Aristotelian argument, that the multitude is more likely correct more often than just a few human beings who are isolated, like Supreme Court justices or federal judges are. So I think there's probably a general trend regarding human nature playing into which theory of interpretation one has, but the debates over constitutional interpretation are so nuanced and so complex that it's hard, I think, to paint with a firm brush over the entire field. Thank you for listening to this episode of the No. 86 Lecture series on Property Law. 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