Moral Constitutionalism

On June 15, 2020, the Supreme Court held that the 1964 Civil Rights Act’s ban on workplace discrimination on the basis of sex proscribed not just differential treatment of male and female employees, but also differential treatment of workers on the basis of homosexuality or transgender identity. This feat of alchemy prompted a former law professor to stand up the next day in the United States Senate and declare that the decision in Bostock v. Clayton County represented “the end of the conservative legal movement.”

The senator was not dancing on the grave of Antonin Scalia. ­Missouri’s Josh Hawley is perhaps the upper chamber’s leading social conservative. He seemed to feel betrayed by legal conservatism. Its principles of “originalism and textualism” had not delivered the conservative results he expected. Hawley lamented:

If those are the things that we’ve been fighting for—it’s what I thought we had been fighting for, those of us who call ourselves legal conservatives—if we’ve been fighting for originalism and textualism, and this [Bostock] is the result of that, then I have to say it turns out we haven’t been fighting for very much.

Hawley’s concrete objections were two. First, the majority opinion, authored by the “textualist” Justice Neil Gorsuch, was not a textualist text at all. Hawley charged that it was “a historic piece of legislation,” departing from any plain or plausible ­meaning of the text in order to bring about a dramatic change in law. ­Hawley emphasized, too, that Bostock acknowledged but did not address the serious religious liberty problems the decision would create.

In late July, Hawley articulated a broader and deeper disquiet. In an interview, he rejected the strategy whereby nominees for federal courts, including our nation’s highest, ritually clam up about Roe v. Wade—and pro-life senators take on faith that they will vote against it, if given the chance. From now on, Hawley said, “I will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade is wrongly decided. By explicitly acknowledged, I mean on the record and before they were nominated.” Likewise, in the June 16 speech, Hawley had spoken of the “bargain” between religious conservatives—“Evangelicals, conservative Catholics, conservative Jews”—and those who profess the “originalist and textualist” judicial creed. Bostock made clear to Hawley that “the bargain is a bad one.” “It’s time to reject it.”

Hawley criticizes the constitutional “originalism” of today’s conservative legal movement because, he says, it lacks a moral compass. He complains that originalism has not delivered the morally sound results that religious conservatives were told to expect. Hawley is right to complain, and right to desire new arrangements. He is wrong, though, to pick a fight with originalism. Originalism remains the correct principle for interpreting our Constitution. ­Hawley’s true complaint is with ­a textualist methodology that is not implied or entailed by originalism, and which amounts to a strict moral reticence. In this dispensation, interpreting the Constitution according to the original public understanding of it is secondary to the end of being neutral about morality. This state of affairs is captured in the image of Supreme Court Justices settling the meaning of the Constitution as if they were umpires calling balls and strikes.

This moral “neutrality” emerged decades ago as a strategy to halt liberal activism on the Supreme Court—the kind of activism that brought us First Amendment secularism and Roe v. Wade. The conservative diagnosis at this time was substantially correct: ­Gratuitous philosophizing at odds with the ­Founders’ understanding delivered judicial policymaking that masqueraded as constitutional interpretation. And the treatment conservatives prescribed—moral, philosophical abstinence—was apt, up to a point. It certainly is not true, as constitutional conservatives properly maintained, that under our Constitution the judiciary possesses a roving commission to right all wrongs, or to impose upon the other branches of government the courts’ ideas of the morally optimal way to order the common good. And it certainly is true, as conservatives again rightly insisted, that the courts are charged with interpreting and applying the constitution we actually have, not some idealized alternative to it. But conservatives went a crucial step farther when they committed themselves to interpreting the Constitution as if it could be done without making judgments about what is morally true.

This conservative constitutionalism is commonly called originalism. Its ways are lawyer’s ways. It relies on craft-based, more-or-less technical legal reasoning. It works fine for most legal texts, including the parts of our Constitution that speak in more strictly legal language. But it fails when we confront the Constitution’s most morally important passages, as we must when debating when an ­individual becomes a “person” and so ­enjoys (as the Fourteenth ­Amendment directs) the “equal protection of the laws” against homicide—or what the word “marriage” means, not in the Constitution itself, but in a ­century and a half of judicial precedents concerning a “­fundamental ­constitutional right to marry.” On these and other great moral ­matters addressed by the Constitution, the conservative legal movement has whiffed.

Whereas their adversaries do not hesitate to impose a moral philosophical position upon the country (as in Roe and 2015’s Obergefell v. H­odges), conservatives routinely claim that their hands are tied because the Constitution is agnostic. Our great charter of liberty apparently has nothing to say about the reality either of persons or of marriage. The conservatives’ Constitution is silent, whereas the liberals’ cannot shut up. Conservatives fail to see that sometimes, the answer to bad philosophy is not no philosophy but better philosophy.

This asymmetrical warfare is no longer sustainable. It is time for conservatives to open up their largely sound constitutionalism to making the critical moral judgments that the Constitution, as originally understood, requires for its sound interpretation.

When a plurality of the Supreme Court declared on June 29, 1992, in Planned Parenthood v. Casey, that “at the heart of liberty is the right to define one’s own concept of ­existence, of meaning, of the universe, and of the mystery of human life,” they stipulated that freedom—the fundamental commitment of our constitutional order—requires that each person serve as the source of meaning and value for himself or herself. Under such an assumption, a genuinely common good becomes difficult to imagine. Any “common good” would be arbitrary, a contingent consensus among privately chosen meanings.

However dubious, this definition of freedom was not an aberration. In Casey, the Justices said they were synthesizing a generation of Court holdings on subjects such as religion in public life, religious liberty, marriage and family, and sexual morality. “These matters,” the plurality wrote,

involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.

Now another generation has passed since Casey, and the Court has several times ratified the Mystery Passage in its affirmations of abortion rights and its redefinitions of such basic social forms as marriage and the family.

The Mystery Passage promises a beguiling individual autonomy by eliminating any transcendent source of meaning and value. What meaning and value reside “at the heart of liberty” are put there by the solitary self. What makes any worldview a valuable exercise of this “liberty” is the fact that it is really (deeply, truly) mine, and thus constitutive of an “authentic” self. This lonely soul nonetheless stands before the cosmos, seeking meaning in it—or, more accurately, ascribing meaning to it. But the cosmos can be stubbornly indifferent to human vanity. The real world can mercilessly contradict our alternatives to it. Sometimes it thwarts realization of the “identity” a person wishes to “present.” One factor that can be recruited—forcibly, if needed—to the project of ­sovereign self-­definition is the outward behavior and manifest attitudes of other people. Other people must be prevented from adversely judging—or, worse, “stigmatizing”—“one’s own concept” of gender, self, and society.

In Obergefell v. Hodges the Supreme Court weaponized the anxious solipsist’s distress against the threat of being made to “feel different”—that is, to feel bad or insecure about one’s “identity.” In an opinion whose justificatory reasoning was Mystery Passage all the way down, the Supreme Court prescribed marriage as a salve for the sores of self-definition:

Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.

Then the Justices conscripted the community and its laws to reassure the “fear[ful]” couple, requiring us to endorse the couple’s choices as valuable, sound, good, at least for them. This is why wedding vendors such as Jack Phillips of Masterpiece Cakeshop have become targets of a new intolerance. Phillips’s offense is that he will not say that same-sex marriage is fine by him. For the moral philosophy behind the Mystery Passage, this refusal to affirm is a crime.

Our constitutional law stands today at a crossroads, just as “the heart of liberty” straddles irreconcilable worldviews. This is not the first time our house has been divided. Indeed,

the world has never had a good definition of the word liberty, and the American people, just now, are much in want of one. We all declare for liberty; but in using the same word we do not all mean the same thing.

When Abraham Lincoln uttered these words on April 18, 1864, he contrasted those for whom “liberty” meant each person’s proper moral self-­government and “others, [for whom] the same word may mean for some men to do as they please with other men, and the product of other men’s labor.” Lincoln declared: “Here are two, not only different, but incompatible things, called by the same name—liberty.” Lincoln understood that the two incompatible concepts of liberty called into being opposing cultures, customs, institutions, and laws. He recognized that North and South were two different worlds. They could not long last as one polity. He predicted that the country would soon enough “become all one thing, or all the other.”

The American people today use the word “liberty” in two incompatible ways. They consequently live unquietly in two incompatible social worlds. Many Americans still hold fast to the liberty that has endured throughout our country’s history: Each adult person’s independence from the arbitrary authority of another (thus, no slavery or servitude); the right to direct one’s own life toward genuine human fulfillment by and through free choices; to be (in this way) the author of one’s own life. This liberty does not presuppose that the individual is an atomistic, asocial being. Nor is it rooted in moral skepticism. It has long been embedded in abiding societal convictions about aspects of well-being that are good for everyone and moral norms that are true for everyone. These universal aspects of human flourishing were the foundations of a genuinely common good, which public authority had an inalienable duty to promote in limited ways for the sake of everyone’s flourishing. A greater-than-human source of meaning and value created and sustained this morally ordered world.

Against this understanding of personal freedom in a morally ordered universe are arrayed the Mystery Passage and all its works, with the hollow promise of finding meaning deep down inside ourselves, in our personal rabbit holes. Josh Hawley has done conservatives, and all Americans, the service of awakening us to the choice that lies before us. 

Gerard V. Bradley is professor of law at the University of Notre Dame and trustee of the James Wilson Institute.