The Paradox of Originalism

An Essay in Honor of Judge Paul B. Matey

Rene Magritte, “The Fifth Season” (1943).

Editor’s Note: On Tuesday, The New Digest was honored to present an essay by Judge Paul B. Matey, “Learning What Has Been Forgotten,” based on a talk delivered on November 1, 2023 at an event on “The Classical Legal Tradition,” held by the University of Pennsylvania Law School’s chapter of the Federalist Society. At the same event, Adrian Vermeule delivered a response, presented here with light revisions. Our thanks go to Judge Matey and to the student organizers.

Thank you for having me. It’s a pleasure to join you to celebrate the contributions and jurisprudence of one of our most thoughtful and learned appellate judges, Judge Paul Matey. My thesis, perhaps a counterintuitive thesis, is that I think Judge Matey the leading originalist judge on the federal bench today. I say this not only because of the high quality of his opinions, but because those opinions display what I will argue is the most genuine form of fidelity to the legal worldview of the founding era, rightly understood. And this will lead me into a paradox: because the founding era was not itself originalist, at least not in anything like the modern sense, the highest version of originalist fidelity is not to be an originalist. Let me explain, first by laying out some general principles, and then illustrating those principles from a few of Judge Matey’s opinions.

What makes a good originalist judge? Presumably, given the theory of originalism, the judge would at a minimum faithfully apply the account of the nature and sources of law that the framers, ratifiers and lawyers of the founding era themselves held. After all, laws, including constitutional laws, are always passed against the backdrop of some such implicit or explicit understanding of the nature and sources of law, and would be read and understood against that backdrop in the founding era itself. Now, some originalists acknowledge this and speak of “original methods originalism,” an effort to fold the methodological commitments of the founding era into a positivist account of law based solely upon written enactment by civil lawmakers or authorized declaration by judges. On that sort of account, for example, natural law has binding force only insofar as it is incorporated into positive civil enactments, constitutional or statutory, or into authorized precedents. But as I will explain shortly, that is not and indeed cannot be an adequate account of founding-era legal methods and beliefs, because the framers, ratifiers, founding-era lawyers, and indeed citizens generally, did not themselves hold to a positivist account of law. Far from holding that all law derives its force solely from authorized written enactment or declaration by human civil lawmakers and officials, the widespread belief of the founding era, with isolated exceptions, was that natural law is binding ex proprio vigore, of its own force; the office of the lawmaker or judge was, at least in important part, to discern, interpret and specify or determine what binding higher law always already required. One cannot take the methods of the founding era in isolation from, abstracting from, the underlying view of law’s nature on which those methods were based. (An excellent essay makes a similar point about the Court’s recent efforts to abstract legal “history and tradition” from the underlying account of law’s rational nature on which the relevant traditions were based).

I hope my paradox is now clear: to fully internalize the expectations of the framers and ratifiers, to be fully faithful to the founding, one must abandon the positivist premises on which “original methods originalism” or indeed any modern originalism is based. The highest fidelity to the legal premises of the founding era is to overcome, and abandon, the idea that the sole touchstone of legal validity and legal interpretation is fidelity to the will of authorized framers and ratifiers. I should add that I am not myself an originalist, and do not accept classical legal principles because they were the principles of the founding era; I accept them because I believe they capture the real and enduring nature of law. But given the sway originalism holds in American legal theory, at least nominally, it is important to get clear on what originalist fidelity, rightly understood, actually requires.

So what principles of interpretation would a judge of the founding era, steeped in the classical legal tradition, actually apply? We don’t have to look very far. American lawyers of the founding era drew upon a common set of sources and models for understanding. Chief among these were Blackstone’s commentaries, other commentaries by jurists such as Grotius and Pufendorf, and the English common law. These sources themselves impounded the mainstream of the Western legal tradition, the ius commune, a synthesis of civilian law based on the Corpus Juris Civilis, canon law, and a broader repository of general and traditional background principles of legal justice. Indeed this approach held sway well past the founding era. In 1895, to pick an example nearly at random, the Supreme Court identified — not declared — a fundamental presumption of innocence in criminal cases as a presumptio juris, a general and fundamental presumption of law, copiously citing the Digest, Codex, and canon law, and taking those sources to be continuous with the English common law.

Of course this tradition did not speak with one voice on all questions; no complex tradition does. And the various branches of the tradition emphatically did not share all first-order rules of law; the civilian approach to contracts, say, is rather different than the common law approach, and Blackstone by no means shared all the views of Roman lawyers on questions of public law. But the tradition shared a common framework, a basic ontology of law composed of positive civil or municipal law, natural law, the law of nations, and divine law. It was common ground across the tradition that principles of legal justice could be unwritten, binding of their own force, and given in the nature of law as fundamental; not all law was written or declared by human lawmakers. And the various branches of the tradition, including that local variant prevailing in England that we somewhat misleadingly call common law, shared basic presuppositions about legal interpretation, such as the idea that statutory and constitutional texts should if at all possible be harmonized — read in accordance with — fundamental background principles of legal justice stemming from non-posited sources of law, especially when civil texts are ambiguous, vague or otherwise under-determinate.

This is emphatically not to override the text in the service of some extrinsic moral agenda. As Judge Matey emphasizes, we are definitely not to imagine that the classical judge is always talking about higher law or that the classical judge fancies himself a bit of a philosopher enrobed. The reason of the classical jurists is very much an internal reason, a form of practical reasoning internal to the practice of law. Rather the classical principle of harmonization is itself a way of interpreting the legal and even semantic meaning of the text, which is always presumed to be enacted and read within an account of the scope and nature of the legislative office and indeed of the nature of law, as intrinsically reasoned and ordered to the common good or general welfare of the temporal polity.

By contrast, what we today call “originalism” was simply not a part of the understanding of the founding generation or many generations thereafter. As an articulated theory of interpretation, it is essentially an invention of the era of legal positivism that prevailed after the 1960s, and originalism itself does not come into focus until the 1970s and 1980s — as has been confirmed by an important and comprehensive recent empirical study of federal decisions from the very beginning. The study is called “Is Originalism Orthodoxy?” and concludes that the data “lend important empirical support” to those who see originalism as “new, selective and disruptive.”

To apply originalism in this modern sense to legal texts of the founding era, enacted on entirely different, non-positivist assumptions and against a very different background legal ontology, is a kind of category mistake, an act of grave infidelity. In extreme cases, it is to simply read texts as what philologists call false friends, analogous to reading the English word “gift” according to its meaning in German, “poison.” A speaker of English at a given time expects the listener to apply the background understandings of English prevalent at that time, and a framer or ratifier of legal English at a given time expects the interpreter to apply the relevant background understandings of the nature and office of law, legislation and judging. The only twist here is that the relevant background understandings of the nature of law in the founding era, and indeed throughout the 19th century and into the 20th, themselves denied that law’s validity derives solely from authorized enactment or social convention. The highest version of originalist fidelity is not to be a modern originalist.

With that in mind, let me turn to Judge Matey’s opinions, which capture the legal mindset of the founding generation with admirable clarity. Let me begin first with the simple point that in many cases, perhaps a large majority of cases, the classical judge will walk and talk in a way that is indistinguishable from any other judge, indeed indistinguishable from the most hard-bitten legal positivist. This is partly because many cases are easy, on any interpretive approach, but more importantly because the classical legal tradition has recognized at least since Aristotle that there are certain issues as to which legal justice is simply indifferent, such as the precise age requirement for getting a driver’s license. As Judge Matey explained for the panel in a decision called Lopez v. Attorney General in 2022, “often, legal meaning and ordinary public meaning travel together because interpretation using ordinary public meaning ensures that the people have received appropriate notice of the government's legitimate purpose…. When this coordinating purpose predominates, so too should the public meaning, even if a law incorporates technical terms.” Here as elsewhere, the classical law is by no means opposed to what we today call textualism; rather it includes and subsumes it in a larger order that puts enacted positive law in right relationship to law generally, that rightly orders what the tradition calls lex and ius.

Where some go wrong, however, is extrapolating this category of cases to all law, saying that law is never anything more than a coordinating device, overlooking that law is both reason and fiat, and that when or especially when fiat is under-specified, general, vague or ambiguous, some account or other of the law’s reason for being will have to be invoked. There is no alternative. Indeed, reason is always inherent in reading even the semantic meaning of seemingly clear legal texts, although the attribution of reason happens so quickly and naturally that it often escapes our attention. We naturally read statutes and constitutional provisions with the essentially conclusive presumption that the legal text is public-regarding and rationally intelligible; we are highly reluctant to consider, and usually do not consider at all, the possibility that the text is a twisted joke, or that its aim is to benefit the legislator’s nephew. Judge Matey explained this as well in a recent majority decision called Epsilon Energy, involving the interpretation of the joinder provisions of Rule 19 of the Federal Rules of Civil Procedure. Quoting a famous passage from Blackstone, Judge Matey said that “ ‘[T]he most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it.’ A process dating to the Founding when all legal interpretation was viewed “as a process of discovery” to find the law’s reason, drawing on a ‘bundle of interpretive principles’ like Blackstone’s that informed the American legal tradition.”

There is another important feature of Epsilon Energy, a feature explored as well in Judge Matey’s extra-judicial writings as a jurist (including a piece forthcoming in the Harvard Journal of Law and Public Policy which I had the pleasure of hearing live). The law itself often builds in justice as a legal concept. The Federal Rules, at issue in Epsilon Energy, themselves speak in terms of justice; Fed. R. Civ. P. 1 says that the rules “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action.” As Judge Matey put it, “[d]rawing on their classical roots, the Federal Rules … offer broad statements of principle that must be conscientiously construed, not rotely recited.” In certain quarters there has been exclusive attention to the constitutional oath, and far too little attention to the federal judicial oath, which requires judges and Justices to vow to “administer justice without respect to persons.”

But note the crucial point that we have here justice as a legal concept, a concept internal to law, the working concept of the practicing lawyer or working judge — an exercise in practical reason, as opposed to the speculative reason of the philosophers. The judge cannot simply throw up his hands and say “after all, who is to say what justice is? Who decides?” It’s not a seminar. The answer is that the judge must decide, although when the judge decides he of course decides under standards that may require deference to the reasonable decisions of other actors and that always incorporate traditional constraints.

What are those constraints? When judges administer justice according to their oaths, they do so by reading texts to accord with and impound traditional, indeed immemorial background principles of legal justice, not according to speculative whimsy. One of the false alternatives encountered in recent debates over interpretation is that the judge must choose between objective text and “subjective preferences” or “personal values,” between pure fiat and unstructured, unguided speculative reason, making the judge an ersatz philosopher. The reason of the jurists is not like that and never has been. Far from being unstructured, it is the artificial reason of the law, shaped and constrained by legislative texts and purposes, by precedent, by a thick tradition of legal maxims that identify recognized background principles, and most fundamentally by the classical conception of the offices of legislator and judge, which instruct the judge to respect reasonable specification or determination (determinatio) of legal principles by political officials.

Consider in this regard a dissent by Judge Matey in a case called Burrell in which, unlike the court, he would have dismissed various statutory and common law claims brought by child support debtors who had been held in contempt for nonpayment, after being found capable of paying. Said Judge Matey, “the ruling diverges from the traditional and classically ordered principles acknowledging the great duty parents hold to care for their children,” citing Pufendorf, Burlamaqui, Locke and Blackstone. With the partial exception of Locke, these are jurists and legal commentators summarizing a principle internal to law, one that goes back to the origins of our legal traditions, not abstract philosophical argument. Judge Matey here stands in the same tradition, and does exactly what any judge of the founding era would do, drawing upon the same sources. In my paradoxical sense, this is the highest and best version of fidelity to founding principles. It is, fully and simultaneously, the overcoming of originalism and the fulfillment of originalism, rightly understood.