The Debate We Should Be Having Over Catholicism, Constitution

We are living in a time of confusion about, and division over, the nature and future of American constitutionalism. Much of this tumult is the result of appointments to the Supreme Court. Legal conservatives have succeeded in appointing a majority of justices committed to originalism, which holds that government officials, including federal judges, are bound by the meaning that constitutional provisions had when they were enacted. Since originalism started gaining ground in law and politics in the 1980s, scholars and activists on the left have argued that this approach to judging perpetuates injustices rooted in the Founding. More recently, some Catholic scholars and activists on the right have also attacked originalism, arguing that it has failed to halt progressive legal victories on contested social and political questions and lacks the moral principles to do so. Despite the significant differences among these critics of originalism, they agree on at least one thing: Originalism is a morally empty theory that cannot justify the results it produces in important and controversial cases.