Supreme Court Justice Samuel A. Alito Jr. provided more questions than answers when addressing students recently at the Catholic University of America’s law school.
But that was the point. Alito sought to get students’ brain cells activated as they took on a new intellectual project at the Columbus School of Law. The associate justice’s September 27 lecture kicked off the Project on Constitutional Originalism and the Catholic Intellectual Tradition (CIT). Alito was named the Honorary Chair of the Advisory Council of CIT last April.
Alito offered 10 “preliminary thoughts” on the Project – framed as questions the Project might seek to answer regarding originalism, the Catholic intellectual tradition, and their potential relationship. He surveyed the current debate about the compatibility of originalism and the Catholic intellectual tradition, the history of originalism, major debates within originalist theory, and important conceptual and practical issues relating to the Catholic intellectual tradition.
According to the law school, CIT promotes scholarship that explores the relationship between the Catholic intellectual tradition and American constitutionalism. That tradition includes philosophical and theological accounts of law and politics by thinkers like St. Augustine and St. Thomas Aquinas. Although CIT’s primary focus is on theories of constitutional law, such as originalism, its ambit is broad and covers the relevance of the Catholic intellectual tradition for constitutional history, doctrine, and other fields of study.
Alito defined constitutional originalism as “the theory that the Constitution should be interpreted in accordance with its original public meaning,” according to Catholic News Service. On the contrary, a “living” constitutionalism theory advocates interpreting the U.S. Constitution broadly in accord with current societal views.
But, he asked, “Does constitutional originalism apply only to the Constitution of the United States or does it apply to other constitutions as well, such as foreign constitutions and state constitutions? Does it apply to all interpreters of the U.S. Constitution or only to a particular category of people who interpret the Constitution — namely federal judges?”
“If it applies only to federal judges, why is that so?” he continued. “And if it is not just a doctrine for federal judges … does it apply to all government officials who must abide by the Constitution? Does it apply in the same way to members of Congress and presidents?”
He said that the theory of originalism has its roots in the 1970s, after the end of the long tenure of Earl Warren as Chief Justice of the United States.
“Originalism arose as a reaction to the way constitutional interpretation had been carried out by the Warren court during the prior decade,” he said. “By the end of the 1960s, the perception had arisen in many quarters that controversial Warren court decisions, particularly in the area of criminal justice, had been based not on the Constitution but on justices’ personal policy preferences.”
He said that one attraction of originalism was that it promised to impose clear limits and thus prevent judges from using constitutional decision-making as a vehicle for imposing their own policy preferences on the country. The late Supreme Court Justice Antonin Scalia, he pointed out, was “a pioneering originalist,” who believed originalism “is there to prevent” the potential for judges to impose their own views.
“But what happens when a case concerns a situation that could not have arisen when the relevant constitutional provision was adopted?” Alito asked. That comes up “most clearly when new technology is involved,” he said, raising the question about whether laws to keep children from viewing such games violate the First Amendment.
The case Brown v. Entertainment Merchants Association, for example, challenged a 2005 California law banning the sale of certain violent video games to children without parental supervision. The court struck down the law in 2011.
“Needless to say, there were no violent video games in 1791 when the First Amendment was adopted, so what should be done?” Alito asked. “Should we look for the closest parallel, like the description in books?”
One might consider Homer’s Iliad, he suggested, which contains “some pretty gory scenes” of slaughter, or “Grimm’s Fairy Tales,” which include the beloved Hansel and Gretel shoving a witch into an oven.
“Does that decide the question?” he asked.
He then turned to the other side of the CIT project, the Catholic intellectual tradition and how it intersects with constitutional originalism. It is a tradition going back millennia, even before Christ, and it is so broad that one must limit consideration to only part of it – like Catholic thought about the role of the state or Catholic thought about the law.
The lecture was not Alito’s first at the Washington, D.C., university. In November 2018, he spoke at an event hosted by Catholic Law’s Center for Religious Liberty.
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