In response to: Is Legal Conservatism as Accomplished as It Thinks It Is?
Jesse Merriam argues that the unifying thread in the modern legal conservative movement is a commitment to originalism, especially in constitutional interpretation. If, as Merriam also argues, the jurisprudential analogue to fusionism is under pressure, originalism’s conservative bona fides will be a central point of contention.
Merriam cautions against equating the rise of originalism with a triumph of conservatism: Originalism’s indeterminacy leaves room for liberal outputs—and professors, including those labeled “conservative,” will make those cases. This claim fits with the broader story he tells, in which the legal conservative movement garners victories for economic and social libertarianism but leaves social conservatives’ dreams deferred and regards economic populism as heresy. His Liberty Forum essay argues, provocatively, that the conservative legal movement is in result, if not in aim, a classically liberal project.
This response asks whether, and how, originalist interpretation can be conservative. This might appear to be the wrong question. Originalism is an interpretive method, not a worldview or governing philosophy. Many originalists emphasize that the method lacks any political valence. It is, in fact, this disconnect between originalist interpretation and conservative politics that makes Merriam’s unease about originalism and the legal conservative movement possible.
Yet originalism had its revival in that movement, and the method remains its fighting interpretive faith. To be sure, there are originalists who are not conservative or who regard the political outputs of originalism as irrelevant to the project. There are also a few “black swan” academic conservatives working in legal interpretation who have little time for originalism. But it is worth pondering why a method that is putatively separable from a political theory has a center of gravity resting firmly in the conservative legal movement. Hardened realists will say this naïve question answers itself, but I am more willing to take defenders of originalism at their word and consider whether there is in fact a connection between originalism and conservatism that runs deeper than crude results-orientation.
I will argue that there is a strong conservative case for originalism as an abstract, formal matter. Nevertheless, the conservative case for originalism as applied to our particular constitutional order at this particular time is less certain and more complex. This essay is not a conservative case against originalism. Rather I will be thinking out loud about unresolved questions that have been nagging at me. I believe that for those who, like me, are sympathetic to originalism and the conservative disposition, these are worries worth confronting.
The Classical Natural Law Tradition
Why should someone be an originalist? A satisfactory answer to such a question will be normative. Even if an interpretive method aspires to moral neutrality in application, choosing that method over others turns on value judgments external to the theory. I have offered, by myself and with a coauthor, such a case in defense of originalism rooted in the classical natural law tradition. Briefly put, the argument is that, while moral and political philosophy permit a wide range of reasonable governing arrangements, it is unreasonable not to choose and entrench one of those many possible options. Originalism helps reap the moral benefits of law by ensuring that we honor and preserve that settlement; if we did not, we would risk going back to square one and losing the goods of coordination and cooperation that led us to entrench a constitution in the first place.
This is a normative argument for originalism, but it operates at the second order of moral considerations. You do not choose originalism only if the constitutional regime optimizes your political priors, nor do you depart from originalism simply because a particular output of a constitution goes against what you think is best, all things considered on a particular question. The judgment is that the second-order benefits of supporting a reasonably just framework of cooperation and coordination are likely to be greater than a regime in which individual or small groups of officials constantly seek to recalibrate a legal system to meet their (often reasonably conflicting) beliefs about first-order questions.
This does not entail moral relativism or rule utilitarianism. Rather, drawing on the thinkers in the tradition of Aristotle and Aquinas, it presumes that moral reality is objective and informs practical judgments, but does so in a non-deductive fashion that can permit a reasonably wide range of possible arrangements. Of course, this argument for originalism holds if the constitution or its particular provisions fall within that range of reasonableness. One could, I suppose, be originalist about the Khmer Rouge’s constitution, but that’s at best a morbid parlor game and at worst an immoral action for a legal official. But there are many constitutions that fall within the range of reasonableness, such that a responsible interpreter ought to be originalist.
A Certain Disposition
How does that defense square with conservative moral and political theory? Let’s first clarify what I mean by “conservative” here. The term has many meanings, and even when we separate “conservatism” from the classical liberalism that holds up part of the fusionist project, the remaining territory is murky and contested. Nevertheless, for present purposes, I will gesture toward the dispositional conservative tradition that draws on thinkers like Edmund Burke, Russell Kirk, and Michael Oakeshott.
This disposition is, said Oakeshott in his 1956 essay “On Being Conservative,” to “prefer the familiar to the unfamiliar, fact to mystery, the actual to the possible, the limited to the unbounded.” It is a “propensity to use and enjoy what is available rather than to wish for or look for something else.” This is not because what we have is better than any alternatives, but because it is ours. Change is inevitable, if sometimes regrettable; even something that is on balance an improvement comes with a sense of loss of what was before. The conservative will seek to temper change through gradual adjustment, not radical reworking.
This variety of conservatism chimes with sophisticated understandings of traditionalism. To borrow a definition from Martin Krygier’s 1986 essay “Law as Tradition,” a vital tradition a) draws on a past, b) which has an authoritative presence today, and c) has been passed down over intervening generations. While traditionalism recognizes the necessity for incremental change and development, it rejects a rationalism that subjects all current practices to the withering scrutiny of individual reason.
Finally, such conservatism also has an affinity for a political vision that is skeptical of centralization and large projects, while favoring communitarian localism alongside decentralized political and economic power. One could understand the conservative populism discussed by Merriam as flowing from a judgment that, since traditional localism is not feasible in our centralized regime, it is better to realize other conservative values at the national level than not at all. This suggests that debates around fusionism in politics are not just between libertarians and conservatives, but among traditionalist conservatives who disagree about which second-best option is, as a matter of prudence, more choiceworthy: a classically liberal regime or a thicker national conservatism regime.
This is a thumbnail sketch of dispositional conservatism and, while I am sympathetic to it—and am uncertain about whether or how much to make it a centralized, national project—I recognize this vision is open to serious objections that I have not resolved. For present purposes, however, let’s appraise it as the going rival to the libertarian strain of the conservative fusion movement.
Practical Considerations: Where the Difficulties Emerge
How does this kind of dispositional conservatism relate to originalism? The answer to this question depends in part about how particular we want to be as we move from consideration of originalism at a formal level to its operation in practice today. Non-originalists have argued that dispositional conservatism does not square with originalism, which can have a Year Zero (or Year 1776/1789) insistence on upending present arrangements inconsistent with first principles. As I will discuss below, these points have some force. But before that, I want to show how, at least at a formal level, there are ways in which originalism and this variety of conservatism are harmonious.
Imagine a written constitution that the people adopt by a supermajority. It will not be a perfect constitution—none is—but it can reflect much of what its adopters hold in common, what they value, or at least how they have decided to live together. It will likely be hard to amend. And, over time, it will become even more central to the people’s understanding of their government as they return to that law time and again to resolve disagreements about basic questions of political order.
There are many ways in which originalist interpretation is consistent with, or even makes possible, a conservative approach to constitutional governance. The constitution may not be perfect, the originalist interpreter will concede, but it is ours, and, as Oakeshott put it, we should “use and enjoy what is available” rather than scrap it at the first inconvenience as standing in the way of utopian hopes.
Modulating into a traditionalist key, the originalist’s constitution is rooted in the past as an important, historical act of lawmaking; originalist interpretation makes it possible for the constitution to have an authoritative presence, and consistent originalist jurisprudence passes those historical, traditional norms down to the present and ensures their persistence into the future. Better that humble passing-on of tradition through cautious, incremental development than indulging the rationalist dreams of elite jurists and their academic whisperers.
It is easy to see why a person with a conservative disposition could be open to originalist interpretation. But there are harder questions once we move from formal abstraction to practical particulars of a given constitution.
First, much will turn on the legal content the dispositional conservative would be originalist about. To pose an extreme hypothetical, being originalist about a constitution that calls for a constant revaluation of values by a revolutionary vanguard would be conservative in only a notional sense. Content counts, which tees up the question how the original constitution of the American Founding fits the conservative disposition.
Going back to the political affinities I discussed above, to the extent our original constitution decentralizes power and allows for local control and solidarity across a variety of communities, it will appeal to the dispositional conservative. But if our original constitution prescribes Manchester liberalism at all levels of government, that is quite another matter. So, if libertarian advocates of judicial engagement are right about the original constitution, the dispositional conservative will pause. It all depends on what we find, and I suspect much will turn on the debate about how Lockean the Founding was in its moral anthropology and political theory.
Now even if the original constitution is more libertarian (or progressive) than a conservative would like, that does not preclude originalism. Much could turn on how “detachable” a constitution’s legal norms are from its underlying philosophy. Some thoughtful originalists draw on artifact theory to contend the connection between a constitution’s norms and the underlying philosophy can be quite tight. On the other hand, if there can be a gap between a constitution’s positive law entailments and its creators’ aims, a conservative originalist might be less worried if Lockean Founders “built better than they knew.”
Additionally, to the extent the original law of the constitution (and its original law of interpretation) is indeterminate, perhaps dispositional conservatives could find a place for their values in the construction zone within the constitution’s frame (or see them recognized in the interpretive methods that originalism blesses).
Furthermore, and perhaps paradoxically, the traditionalists’ second-order commitment to the given over the perfect could lead them to accept a constitution that leans the wrong way on first-order values. So long as the present regime be a reasonably just one, the traditionalist must perdure and at most hope to secure a more conservative order through incremental change.
A second problem concerns drift in constitutional law and norms. Even if the content of the original constitution were acceptable to a conservative, and even if the traditional approach to interpretation were originalist until the early 20h century, non-originalist law and practice might stand between the contemporary traditionalist and the earlier originalist era. There is an active debate about whether originalism is our law of interpretation and about how much the current constitutional order departs from the original constitutional regime. The evidence suggests to me that originalist law and interpretation are a live option today, while not being the only contender in the field. Indeed, if no part of today’s small-c constitution—legal institutions and arrangements that Americans view as important and take for granted—conflicted with the law of the original Constitution and its rules of change, that would be quite a coincidence or suggest that originalism has little bite.
Some contemporary originalists’ reliance on corpus linguistics underlines the dispositional conservative’s unease about constitutional drift. Corpus linguistics is an ingenious, good faith attempt to capture authoritative original public meaning in a systematic fashion. But compared to standing firm on an original meaning or intention continuously known, held, and handed down to the present, a practice that gives authoritative effect to the outputs of big-data analysis of centuries-old corpora appears alien, artificial, and rationalistic. The comparisons to A Canticle for Leibowitz (1959), or the first chapter of After Virtue (1981), write themselves.
Given the shift in some constitutional norms and the potential break in constitutional continuity, it is therefore unsurprising that stare decisis is one of the most hotly debated topics in originalist law and scholarship today. A dispositional conservative is more likely than a libertarian idealist to appreciate the value of precedent and the costs of radical departures from settled practice. Similarly, the dispositional conservative will be more sensitive to enduring, well-established changes in the “small-c” constitution of the people and less willing to call for a restoration by an originalist judicial vanguard.
A Continuum, Not a Stark Choice
This suggests that, for dispositional conservatives, the line between originalism and a kind of traditionary living constitution could be more a continuum than a stark choice. Compared to the living constitutionalism on offer today, the originalist conservative will be more willing to uphold original law that has stood the test of time, even if it stands athwart history as a stop sign. To the extent norms are contested and the original law is a plausible candidate, dispositional conservatives will also be more friendly than living constitutionalists to arguments appealing to continuity with the original plan of the Constitution. But compared to varieties of originalism more insistent on returning to Day One, notwithstanding great breaks in continuity or substantial departures from popular settlement, the dispositional conservative jurist may be more willing to stand athwart history and . . . perhaps just stand there.
When the calls for restoration hearken back to a lost libertarian regime or a progressive utopia, such a jurist might be content to slowly and unobtrusively step away from the brink.
The irony: that legal conservatism seems to have triumphed now, at a moment when the political conditions that initially spurred it have ceased to obtain.
And in any case, Merriam does not identify a theory that would deliver better results than those delivered by originalism.
Some conservatives are unhappy with modern originalism; the best path for them is not to abandon it but to promote a more conservative version.
There are too few legal traditionalists to achieve what Merriam wants; this argues for a restorative project that’s conceptual rather than demographic.
Libertarian originalism tends to undermine conservative legal positions.
Conservatives, if they wish to preserve state and local governance, should resume their resistance to the incorporation doctrine.