As I write, America is preparing for the election of the next president of the United States. At the forefront of our national conversation is the appointment of a Supreme Court Justice to replace the late Antonin Scalia; and also at least one other, maybe even two more justices, by the next president.

Our national conversation is loaded with terms like: “originalist,” and progressive” Will the vacancies in the Supreme Court be filled with progressive judges or originalist judges? In other words, will the Court begin to “lean left” or will it “lean right” specifically regarding the interpretation of the Constitution?

What does all of this mean and why is it so important to the average American citizen?

          First, what is a “progressive”? A secular progressive believes that their place in history is the ultimate, climatic point in human history — all that can be known, is now known. Progressive secularists are therefore historical skeptics— history, in the thinking of the progressive, is incapable of providing substantive knowledge about the changing world. 

          Progressive historical skepticism is the mold for the forming of the “fact/value dichotomy.” The fact/value dichotomy has been recognized as foundational in the secular university since the 1920s. The fact/value dichotomy holds that we are not supposed to be able to derive a value from a fact, or an ‘ought’ from an ‘is.’ In practical terms, “Since history cannot be relied upon to teach me anything about today, I need to interpret facts in light of contemporary social norms and values.” Therefore, the separation of facts and their interpretation is “a given” in the thinking of the secular progressive.  

 Contemporary politics is rife with examples of the progressive fact/value dichotomy (i.e., the separation of facts and their interpretation). For example, the Obama Administration has called on public school districts nationwide to allow transgender students to use the bathroom that matches their particular gender identity, regardless of their biological sex. 

Guidelines for schools and transgender bathroom or locker room access that accords with their chosen sexual identity, rather than their biological sex, are outlined in: “U.S. Departments of Justice and Education Release Joint Guidance to Help Schools Ensure the Rights of Transgender Students.”[1] Within the guidelines, Attorney General of the United States, Loretta E. Lynch asserts: “There is no room in our schools for discrimination of any kind, including discrimination against transgender students on the basis of their sex.”[2]

Therefore, when a transgender student informs their school of their chosen sexual identity, the school must treat the student consistent with the student’s gender identity. The school may not require transgender students to provide a medical diagnosis, undergo any medical treatment, or produce a birth certificate or other identification before treating them in a manner consistent with their gender identity.[3]

How is the fact/value dichotomy present in this example? In an article entitled:

How The Bathroom Became a Political Battleground for Civil Rights,” Washington Post reporter, Monica Hess, observes that “Bathroom politics” are, “about the collision of those public spaces with cultural expectations at specific moments in time.”[4] Hess (as well as progressives in general) ostensibly interprets the “bathroom politics” controversy in light of contemporary societal norms— i.e., “specific moments in time.”

          Hess is therefore stating that, “To me … bathroom politics are about the collision of those public spaces with cultural expectations at specific moments in time.” The fact/value dichotomy equates reality with an individual’s personal perspective—that is to say, “reality” directly corresponds with the “way I see it.” (In philosophical terms, this is “positivism”). We often hear political or legal analysts speak of “judicial activism” when they are referring to a judge who applies the fact/value dichotomy to legal decisions.                       

Contrarily, Antonin Scalia was, as is, Clarence Thomas and Samuel Alito, an “originalist.” An originalist views the Constitution’s meaning as fixed, as of the time of its enactment. The originalist is then very much concerned with the intention of the original framers of the Constitution regarding each article (and amendment). The originalist is therefore concerned with the historical meaning (intent) of the particular article or amendment but also with how the article’s or amendment’s historical meaning or intent is applied to modern societal conditions.

Why is all of this so important to the average American citizen? Let me conclude by asking a second question that implies a thoughtful answer to why all of this so important: What is “natural law” and how does it relate to either an originalist or a progressive point of view?  


[1]  Department of Justice, Office of Public Affairs, U.S. Departments of Justice and Education Release Joint Guidance to Help Schools Ensure the Rights of Transgender Students, May 13, 2016,

 https://www.justice.gov/opa/pr/us-departments-justice-and-education-release-joint-guidance-help-schools-ensure-civil-rights, Downloaded: 06/20/2016.      Rrrrrr DepartmentEducation Release Joint Guidance to Help Schools Ensure the ightof Transgender Stud. Departments of Education Rese Joint Guidance  Help Schools Ensure the Civil Rights osgender Students ransgenderdents

[2]  Ibid., page 1 of 3.

[3]  Ibid., page 2 of 3.

[4]  Monica Hess, “How The Bathroom Became a Political Battleground for Civil Rights,” The Washington Post,https://www.washingtonpost.com/lifestyle/style/why-america-cant-stop-fighting-over-the-politics-of-public-restrooms/2016/04/01/16af2f94-f6b6-11e5-a3ce-f06b5ba21f33_story.html, page 3 of 10, Downloaded: 06/20/2016.