Over the past five years, conservative constitutional theory has fractured over two competing visions: the dominant originalism and textualism seen across the federal courts, and the rising common good constitutionalism movement rooted in the classical legal tradition and Catholic natural law teachings. Although the conversations remain mostly esoteric, in recent months, the divide between originalists who prefer the traditional textualist approach and classical constitutionalists has reached even Supreme Court justices, and it has ignited debates over whether a Catholic jurist must be textualist or classical.

Catholic lawyers, judges, and legal scholars have long played influential roles in shaping constitutional interpretation. Catholics have held a majority of seats on the Supreme Court for 19 years, have sent 15 justices to the Court, and founded many major law schools in America. In recent times, the esteemed Justice Antonin Scalia won the admiration of not only Catholic legal minds but of the entire conservative legal movement, while trailblazing the path to the current Supreme Court’s jurisprudence. Through the efforts of Justice Scalia and his students, the Court has begun the monumental work of restoring meaning to the Constitution.

One of Justice Scalia’s students has come under fire for her role in this movement from both the legal Left and Right. Before and during her appointment to the Supreme Court, Justice Amy Coney Barrett faced the most blatantly anti-Catholic sentiments levied by prominent politicians since JFK’s rise to the presidency. Democratic senators told Barrett, “the dogma lives loudly within you,” and that she “comes from a religion that is straight out of The Handmaid’s Tale.” Far from carrying some papist agenda, Justice Barrett has served honorably on the Court for the last five years, present for its rulings on abortion, affirmative action, and religious liberty.

In September, Justice Barrett released her first book, Listening to the Law: Reflections on the Court and Constitution. The book covers her legal career and views on originalism, both of which were influenced by her former boss Justice Scalia. She describes her role as “picking up where others had left off” and details the role of originalism in interpreting the Constitution. At several points, she cautions against judges stepping outside the bounds of originalism to decide cases, warning of judges “deciding cases with an eye to their preferred results,” and quoting Justice Scalia’s admonition that “the judge who always likes the results he reaches is a bad judge.” 

Predictably, many commentators on the Left used this opportunity to continue their attacks on Justice Barrett, comparing her to “KGB sleepers” and saying she is “divorced from reality.” The backlash was not limited to leftists either. In an interview with National Review, Justice Barrett targeted the legal Right as well. “I don’t like this common good constitutionalism movement,” she said. “It feels to me like it’s just results-oriented, and I think that it has all of the defects that originalists critiqued when originalism first became a self-conscious theory in the 1980s.”                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            

Adrian Vermeule, a Harvard Law professor, Catholic convert, and the author of Common Good Constitutionalism, has led the aforementioned movement against textualism for the past several years. After Justice Barrett’s interview was released, he published a blog post raising his own dislikes of Justice Barrett’s “dogma.” Last month, he added a sequel to the post, addressing additional remarks from Justice Barrett in which she says, “I think I’m pretty confident that Justice Scalia would not be a fan of common good constitutionalism.”

The divide between classical or common good constitutionalism on one hand, and originalism and textualism on the other, has fluctuated over the years. In 2020, Vermeule released his first article on the subject in The Atlantic, and he released his book in February 2022. In the book, he explained his core pitch to legal conservatives: originalism is now “pragmatically indistinguishable from the progressive constitutionalism that originalism was created and designed to oppose.” Just four months following publication, Vermeule’s argument for a more conservative methodology took a hit with the Supreme Court’s Dobbs decision, a victory legal conservatives had awaited for nearly fifty years. Three years later, Vermeule’s theory has retaken the spotlight as a debate between himself and Justice Barrett, both former Scalia clerks.

In Vermeule’s words, the debates are “about the jurisprudence of Justice Antonin Scalia,” or rather, the legacy of the justice chiefly responsible for the current conservative legal movement. While the evolution of his views remains disputed, Justice Scalia’s ultimate conclusions on judicial use of natural law were crystal clear. His jurisprudence drew a sharp line between his personal belief in natural law and his rejection of it as a legitimate basis for judicial decisions.  Justice Scalia’s ultimate conclusions on judicial use of natural law were crystal clear. His jurisprudence drew a sharp line between his personal belief in natural law and his rejection of it as a legitimate basis for judicial decisions. Tweet This

Though a devout Catholic, Scalia insisted that “natural law does make its demands upon judges—but not the demand that they render judgments that contradict positive law.” In a speech to Dominican friars, he explained that where positive law compels a judge to become “the instrument of evil,” the proper response is not to interpret it under higher moral principles but to “recuse from the case or (if there are many such cases) resign from the bench.” He openly mocked efforts to graft natural law onto constitutional interpretation, calling it akin to telling judges “come govern us.” Scalia never held that conservatives or Catholics move beyond originalism. “We live in an imperfect world that is best governed by the text of laws,” he maintained, so we should leave the justice of natural law “to the next world.”

Although his fight centers on his mentor’s legacy, Vermeule’s critiques of originalism predate the term itself. Before Justice Scalia brought the Court to its originalist reckoning, legal conservatives rallied around a different figure, that of Robert Bork. During his failed nomination, Bork’s theory of interpretation was not called “originalism”; instead, it was often referred to as simply judicial or legal conservatism. Of course, the foundations of originalism were present, including appeals to the Founding and a sense of judicial restraint, but present so too were familiar objections to textual reliance.

Natural law critics of Bork argued his jurisprudence left the Constitution morally hollow. A 1990 Crisis Magazine piece claimed Bork rejected “any absolute set of truths existing independently and depending upon God or the nature of the universe,” declaring that judges should have “nothing to do” with a purported “volume of the annotated natural law.” To the predecessors of common good constitutionalism, Bork’s refusal to allow “higher-law” reasoning threatened to reduce the Constitution to a sterile text powerless to safeguard rights or to challenge morally bankrupt legislation when universal justice demanded it. This wing of critics mostly refrained from targeting Justice Scalia during his time on the Court; but now, in his absence, this fundamental debate has returned.

As for Justice Barrett, she is quite correct in her assessment of Justice Scalia’s views on natural law and common good constitutionalism. Nonetheless, while condemning common good constitutionalism’s furthest extensions, Justice Barrett acknowledges that “there is something to this idea of common good constitutionalism if you’re thinking about it from the legislature’s perspective.” Lines are crossed when natural law considerations move from the legislature to the judiciary, in Justice Barrett’s view. While not definitive, this view of constitutionalism may help broker a truce between the textualist and classical camps, at least for Catholic jurists.

Catholic legal thinkers have long attempted to reconcile a commitment to the natural law with varying notions of constitutionalism, and their work provides a framework for understanding Justice Barrett’s position. Law professor John Finnis, for instance, has argued that “natural law theory in the classical tradition makes no pretence that natural reason can determine the one right answer to those countless questions which arise for the judge,” who, he says, does not “enjoy as a matter of natural law some sort of plenary authority to invalidate or even to subvert or ignore laws that they regard as unjust.” 

Similarly, Russell Hittinger writes in his principal work The First Grace that “there is nothing contradictory in arguing, on the one hand, for a natural law basis for government and positive law itself, while at the same time holding that judges ought, whenever possible, to be bound by written law.” Seen in this light, Justice Barrett’s remarks are a recognition that natural law belongs to legislatures, while the judiciary remains bound to textualism. For Catholic jurists, this approach offers a path toward coherence that incorporates the natural law while still relying on an originalist judiciary.

The debate between textualists and common good constitutionalists will continue; but for Catholic jurists, the distance between the camps is narrower than it appears. Today, originalist decisions are the majority view; Justice Scalia’s fiery dissents are gone. If the Catholic originalists of today wish to conserve a moral vision of the law, they must be willing to concur more than they dissent.