Originalism: How the Justice System Left Behind Justice

By: Tylor Storey*

I. Introduction

“One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. . . . ‘an unjust law is no law at all.’”[1] These words—an unjust law is no law at all—have been a foundational pillar of Western society since the time St. Augustine wrote them in On Free Choice of the Will. But our legal system has forgotten them. Instead of pursuing justice, we have continually enshrined injustices while hiding behind a façade of impartiality called originalism. While remnants of justice as a foundational concept can be found within different legal issues, those are the exceptions to the rule. It is time to return the justice system to what it is meant for—ensuring justice.

II. Enshrining Injustice Through an Unworkable Methodology

As Justice Elena Kagan famously stated, “[w]e are all originalists now.”[2] Originalism, whether that be original intent or original meaning, is the method that the American judiciary has relied on to interpret the Constitution since at least the time of Justice Antonin Scalia, if not earlier.[3] But what does originalism do? It tells us to simply look to what these words meant at the time of their adoption into law—with no question of whether that meaning would serve a stark injustice upon an individual or the community. To be clear, it has served stark injustice, as can be seen in obvious cases.[4] Further, by most accounts, landmark cases such as Brown v. Board of Education, 347 U.S. 483 (1954) and Loving v. Virginia, 388 U.S. 1 (1967) would have to be overruled on originalist grounds.[5] The injustices of originalism even reach into the area of procedure, to deal real substantive harm to those who have been wronged and are simply seeking justice, such as the Article III standing requirements expounded in Spokeo, Inc. v. Robins, 578 U.S. 330 (2016).

Apart from the injustices that originalism may adjudge, it is also unworkable. Justice Breyer has explained that originalism “makes promises which won’t be kept[,]” such as it being “fair” and “simple,” but those promises are “hollow.”[6] This is evident in the many diverging “originalist” arguments that are made within each case’s opinions. It is even more evident in the cherry-picking of (1) which historical traditions best support the desired result, (2) the degree of generalizing the legislation to decide if tradition supports it, and (3) ignoring originalist arguments when they do not seem to fit.[7]

III. Returning to Justice

What is the solution? Those foundational words—an unjust law is no law. They were explained by St. Thomas Aquinas: “[E]very human law has just so much of the nature of law as is derived from the law of nature. But if at any point it deflects from the law of nature, it is no longer a law but a perversion of law.”[8] The great William Blackstone described the thesis as

[t]his law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.[9]

Our constitutional and statutory interpretation should always be against the backdrop of natural law— justice. Good law must be “1) an ordinance of reason; 2) that is binding on humans; 3) for the common good; 4) by someone who has care of the political community.”[10]

While this sets a backdrop for what the positive law must conform to, it does not set definitive parameters on all matters. The “natural law leaves room for determinatio, that is, prudently choosing among a set of morally acceptable options.”[11] For instance, while the natural law may inform us that we ought to not drive in a manner that endangers others’ lives, it does not inform us whether to drive on the left or right side of the road. Therefore, a law requiring individuals to drive on the right side of the road is as equally valid as one requiring individuals to drive on the left side.

IV. A Response to Structural Natural Law Reconciliation

Some scholars, such as Hunter Pearce, have attempted to reconcile natural law theory to textualism and originalism. The argument goes as follows: (1) Natural law does not state which branch of government has the authority to ensure positive law conforms to the natural law.[12] (2) That power has been given to the legislature in our system.[13] (3) The judge enjoys only delegated authority and until the lawmaker speaks, there is nothing a judge can do.[14] (4) The judge is obligated as a matter of natural law to respect the limits of his own authority as has been given to him by determinatio.[15] (5) Therefore, by being an originalist the judge is conforming to the natural law.

This argument is flawed on two accounts: (1) there is debate whether our system grants judges authority to ensure the positive law conforms to the natural law and (2) judges participation with and enforcement of these unjust laws would be a cooperation with evil that goes against the natural law. Pearce seems to admit that it is at least possible that “the Constitution, properly interpreted, does give judges the power to enforce natural law per se[,]” as argued by Ronald Dworkin and Justice Clarence Thomas.[16] In this light, the entire structure of our Constitutional order is built on the background of natural law and should pay a role in its interpretation.[17] If this is the case, premises (2) and (3) fail.

Even if the structure does limit judges’ authority to enforce natural law, it would still be an issue for a judge to take part in the enforcement of a law that blatantly violates the natural law. As stated by Aquinas, a law that requires acts contrary to natural law “are to be called, not laws, but rather corruptions of law . . . and consequently judgment should not be delivered according to them.”[18]

V. Conclusion

Our legal system is no longer about ensuring justice. It is about upholding an interpretative method: originalism. In doing so, we have enshrined injustices within our system under the guise of being fair and impartial. Justice Scalia himself has stated that repugnant punishments such as public flogging or branding might have been tolerated during the Colonial period yet no originalist “would sustain them against an Eighth Amendment challenge.”[19] We should all ask why that is the case. When faced with a law, judges should ask themselves whether it conforms to the range of morally acceptable options in light of natural law. If it does not, judgment should not be delivered according to it because it is no law at all.

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* J.D. Candidate, University of Tennessee Winston College of Law, Class of 2026.

[1] Martin Luther King, Jr., Letter from Birmingham Jail (Apr. 16, 1963), https://letterfromjail.com/.

[2] Michael Waldman, Originalism Run Amok at the Supreme Court, Brennan Ctr. for Just. (June 28, 2022), https://www.brennancenter.org/our-work/analysis-opinion/originalism-run-amok-supreme-court.

[3] See Akhil Reed Amar, Why Liberal Justices Need to Start Thinking Like Conservatives, Time (June 30, 2022, at 8:00 ET), https://time.com/6192277/supreme-court-originalism/ (“[T]he lead architect of the judicial revolutions of 1937, 1954, and 1963 was a liberal originalist . . . it was Hugo Black.”).

[4] See Scott v. Sandford, 60 U.S. 393 (1857); Plessy v. Ferguson, 163 U.S. 537 (1896).

[5] Ruth Marcus, Originalism is Bunk. Liberal Lawyers Shouldn’t Fall for It., The Wash. Post (Dec. 1, 2022), https://www.washingtonpost.com/opinions/2022/12/01/originalism-liberal-lawyers-supreme-court-trap/.

[6] Stefania Palma, Former Supreme Court Justice Stephen Breyer: “Are You Kidding? You’ll Get More Cases Than Ever!”, Fin. Times (May 3, 2024), https://www.washingtonpost.com/opinions/2022/12/01/originalism-liberal-lawyers-supreme-court-trap/.

[7] Marcus, supra note 4 (referencing N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022); Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll., 600 U.S. 181 (2023)).

[8] Thomas Aquinas, Summa Theologica I-II, q. 95, art. II (Fathers of the English Dominican Province, trans., Benziger Bros. 1947).

[9] 1 William Blackstone, Commentaries *1, *41.

[10] Hunter Pearce, Can You Be a Thomist and a Textualist? A Natural Law Defense of Justice Scalia’s Jurisprudence, 9 Faulkner L. Rev. 251, 256–57 (2018) (internal citation omitted).

[11] Id. at 258.

[12] Id.

[13] Id. at 259.

[14] Id. at 261.

[15] Id. at 260.

[16] Id. at 259.

[17] Id. at 259.

[18] Aquinas, supra note 7, at II-II, q. 60, art. V (emphasis added).

[19] Marcus, supra note 4.