Fidelity and Law

The New Digest is pleased to present a guest essay by Jamie G. McWilliam. Mr. McWilliam is a graduate of Harvard Law School and a former law clerk on the United States Court of Appeals for the Ninth Circuit. His scholarship has been cited by courts across the United States, including the Third, Fourth, Eighth, and Ninth Circuits. His academic works, which focus on the application of the natural law in the American legal system, can be found here.

As a young, conservative law student with no real philosophical or legal background, I found myself drawn to originalism by a sense of fidelity. Living constitutionalism—which was really the only alternative offered by my law professors—was so blatantly untethered from the Constitution’s text or the fundamental purpose of the law that it seemed like judges were simply lying about what the law said. Meanwhile, there was something intuitive about the idea that a law’s meaning can’t change over time without some intervening action. Tying meaning to the period the law was drafted felt honest. It felt faithful to the actions of the lawmakers.

A desire for fidelity led me to originalism. But it is also what led me to eventually seek something more. Originalism offered faithfulness to text and to lawmaking action. Yet even though it solved for linguistic drift, I saw court decisions drift from something even more fundamental than the language used to promulgate a law: the reason of the law itself. Judges and lawyers got so bogged down in nitty-gritty arguments about syntax or the propriety of using this or that obscure historical source that they lost sight of the bigger picture. They lost the legal forest for the textual trees.

Enter the classical legal tradition. Through the works of contemporary writers like Adrian Vermeule and Hadley Arkes, I discovered a broader legal world, now largely forgotten, in which positive law is grounded in objective moral principles and legal reasoning is not afraid to analyze text in light of those principles. The tradition has its roots in Greek and Roman thought, and was developed through millennia before being taught to the Founders of the United States. It was the legal philosophy that provided the moral justification and reason for our laws, system of government, and the very formation of our nation. But while the classical tradition offered me a more compelling account of law as a whole, I wasn’t ready to throw out originalism completely. Though it failed to satisfy my desire for a more complete account of law and legal interpretation, there was still something in originalism that rang true to me.

And I seem to not be alone in this feeling. Even many of those who accept the classical tradition seem unable to escape originalism. Scholars like Jeff Pojanowski, Kevin Walsh, and Joel Alicea have tried to justify a maximalist version of originalism from within the classical tradition. Others, like Josh Hammer, argue that classical considerations are justified in legal interpretation, but only when the text and history “runs out.” In each of their works, I found much that I agreed with. Pojanowski, Walsh, and Alicea convinced me that the classical tradition supports a version of the fixation thesis—that the meaning of positive law is in some sense fixed at the time it is enacted. And Hammer provided a compelling account of how text, history, and classical principles can work together in a practical interpretive framework. But in one way or another, each of these works felt weighted too far toward positivism. Pojanowski, Walsh, and Alicea offered convincing arguments on the classical importance of original meaning and positive law, but to accept their conclusions that original meaning is the final consideration of legal interpretation would be to land right back where I started: in a world where a technical positivist inquiry could separate law from its underlying moral principles—but where moral principles somehow justified doing so? Hammer’s ultimate framework struck me as largely correct from a practical perspective, but the philosophical landscape in which it operated was the interpretation-construction structure of mainstream positivist originalism. Even those classically-minded writers who are most critical of originalism as a judicial philosophy - like Vermeule and Conor Casey - have argued that the most important insights offered by originalism were already firmly prefigured by the classical tradition.

This left me wanting a more focused examination of originalism’s core claims in relation to the classical tradition and an explanation for how we can remain faithful to the decisionmaking of past lawmakers, while also keeping fidelity to the principles those lawmakers operated against.

My forthcoming article, “Fixing” the Classical Legal Tradition, attempts to tackle that task, and I will offer a brief synopsis here.

The classical tradition begins with Aquinas’s definition of law as “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.” In this tradition, natural law principles - objective moral principles accessible to human reason - form the bedrock for law oriented to human flourishing. But these principles are often too general to be consistently applied in all cases. Positive law is used to provide concrete content to underdetermined principles. For example, the natural law might provide the principle that one should not take an innocent human life, but it is up to the positive law to prescribe particular punishments for doing so. An “ordinance of reason for the common good” is therefore a law that is consistent with those principles of reason that guide a community to flourish.

The latter requirements—that law be promulgated by an authority—relate to how positive law procedurally fulfills its moral role. A flourishing community requires a stable order for its members to operate within. Authoritative promulgation ensures that determinations are settled and widely accepted, thereby creating such an order. It is here that I think originalism offers something helpful, by providing theses regarding the mechanics through which positive law does so. That is not to say that the natural law requires us to be originalist in the broader jurisprudential sense (these arguments seem to suggest that the classical tradition is suicidal, requiring its adherents to simultaneously hold to its reasoning but abandon its practice). But just as positive law has a place within a larger system that includes background moral principles, originalist theses about positive law can operate within the broader classical method of interpretation that is sensitive to both positive determinations and their underlying principles. When viewed as simply a small part of a much larger whole, I suggest that these originalist claims are not only compatible with, but in some instances required by, the classical tradition.

First consider Stephen Sachs’ claim that “our law is still the Founders’ law, as it’s been lawfully changed.” Sachs grounds his theory of legal change in a positivist analysis of social practice. But at root, it is simply a version of the idea that a legal rule remains valid until modified or repealed, which as Finnis noted, “is a working postulate of legal thought []so fundamental that it is scarcely ever identified and discussed.” Indeed, this claim is fundamental to the way positive law fulfills its role within the broader classical tradition.

Positive law acts to determine broader natural law principles in a manner sensitive to local conditions. It advances the common good, in part, by settling open questions of social order and thereby providing order and predictability for the community. This is not the only way it secures the common good. The substance of the law matters too. But for a determination of natural law principles to achieve its moral purpose, it must do so authoritatively and with lasting effect. Said differently, once a law is enacted, its legal content must remain the same until it is lawfully changed. The determination made by the lawmakers remains the determination in effect until supplanted or modified by a new determination. Otherwise, it cannot provide the stable guidance that people need to coordinate their actions and pursue the common good. This doesn’t mean positive laws can never change—it just means that change must happen through lawful, predictable procedures. Without this stability, positive law loses its moral function.

If law is to resolve indeterminate questions and settle social expectations, it has to endure over time unless superseded by a new, legitimate determination. This is not legal formalism for its own sake—it’s a condition for law to serve its moral purpose. But that doesn’t mean that the classical tradition supports “original law” originalism as the last word on Constitutional interpretation. This thesis is supported by positive law’s nature as an authoritative determination. But ending the exercise there ignores what the law is supposed to be determining: those first principles of moral reason that underlie all just laws. The theory of legal change is therefore an important, but only partial, explanation for how positive law operates within the broader tradition, and should be treated as such.

So the determination made by lawmakers through an act of positive lawmaking remains unchanged absent intervening action, and the first step in classical interpretation is to ascertain what that determination was. The most natural starting place for doing so is the instrument through which the determination was promulgated—that is, after all, the means the lawmakers chose to convey it to the population. In the American example involving a written Constitution, statute, or regulation, the instrument is a text. So understanding the determination first requires understanding the words used to describe it.

While this should be a relatively uncontroversial point, it becomes tricky when the text is old. Facts change and the meaning of words drift over time, so a facial reading of an old text today might suggest a different meaning than it did at the time it was written. If a contemporary reader were to see a text (legal or otherwise) that referenced “dinner,” he might first assume that it refers to the evening meal. But learning that the text was written in the 1930s, when “dinner” was taken during the day and a smaller “supper” in the evening, should clarify that it probably refers to the midday meal. Understanding the text requires placing it within its historical context. Put differently, the text’s semantic meaning must be viewed as “fixed” at the time it was written.

The same is true for written laws specifically. Ascertaining the determination communicated through a legal text requires understanding the words of the text in an historically accurate way. Otherwise, linguistic drift could steer an interpreter away from the determination lawmakers hoped to convey. Since the role of positive law is to concretize a fundamental moral principle, letting meaning drift with linguistic changes risks distorting both the lawmakers’ determination and its implementation of background principles. Understanding the original semantic meaning of legal texts is therefore not a fetish for history—it’s necessary for fidelity to the law’s moral content.

Reaching the determination embodied in a legal text requires understanding the text’s fixed semantic meaning. But it also requires interpreters to care about how that meaning affects legal interpretation. In other words, the textual meaning must in some sense constrain their interpretive practice. This is the link between the fixation thesis (which is all about semantic meaning) and the theory of legal change (which applies to the legal content of a law). It is not enough to say that the words of a law have a certain meaning—that meaning must actually be used to ascertain the determination embodied within the legal text.

Without this principle—the “constraint principle”—even fixed meanings become irrelevant, because interpreters could always disregard them in favor of their own views. But if law is to serve as a settled determination of natural law principles, judges must treat those determinations as binding. Classical legalism respects the authority of lawmakers to determine how natural law principles apply in a particular society. That deference only happens if judges are guided by the legal text to the determination it embodies. This is not to say that interpreters are constrained to only reviewing the text (though in most cases that is all that is necessary). Instead, the text is constraining as a practical guide to the determination contained therein.

These three originalist theses - the theory of legal change, the fixation thesis, and the constraint principle - offer explanations for how we are to be faithful to lawmakers’ prior determinations. But fidelity to the text of positive law should not be seen as a way to deviate from the principles that law determines. Reading an otherwise just positive law in a way that contravenes its background principles is a perversion not only of the natural law, but of the determination itself, because the determination is made to concretize and apply those principles.

So how do we make sure that we are giving due fidelity to both positive and natural law? By remembering that these originalist theses are not full accounts of law, but describe only the positive aspects of law. And sometimes, the positive law “runs out.” The text becomes underdetermined when applied to certain facts. History fails to resolve ambiguity as to the scope of the lawmakers’ determination. In these instances, natural law principles can inform the meaning of the positive laws that determine them.

So a faithful interpreter of law begins with the text as historically understood. That text provides the best evidence of the determination that lawmakers made by enacting the law. In many cases, once the determination is ascertained, it can be easily applied to the facts at issue. Consider a speed limit of 75 miles per hour on a certain highway. Someone going 80 miles per hour is clearly in violation. But other cases are more difficult, and it may not be clear how a given determination should apply. Recourse should be made to the law’s background principle, applying it in a manner most consistent with the principle it seeks to implement. Through this process, an interpreter can remain faithful to both lawmakers’ decisions and the broader natural law principles that underlie any act of positive law.