Originalism: A Unitarian Church for the Legal Profession?

 

When I was invited to respond to a Liberty Forum essay on the state of legal conservatism, without my knowing the author or having seen his essay, I was sorely tempted to decline. Yet more navel-gazing about conservative thought and originalism? Please. Anything for Richard Reinsch, though. And I have been richly rewarded by Jesse Merriam’s insightful commentary. Among its many virtues is its rediscovery of a mode of thought that is generally ignored or suppressed by soi-disant originalists: constitutional politics.

Start, as the author does, by parsing Law & Liberty’s questions: “Is legal conservatism, in its moment of triumph, as accomplished as it thinks it is? Is it time to celebrate or are there problems on the horizon?” 

Constitutional Politics

The “moment of triumph” has names and faces. There is President Trump, who on the campaign trail vowed to outsource judicial nominations to the Federalist Society and who has made good on that commitment. And there is Senate Majority Leader Mitch McConnell (R-Ky.), a man of great strategic acumen who treats judicial appointments as the “long game” that it is and who has enabled a narrow Republican majority to keep the other team’s judges (Merrick Garland) off the federal bench and to get our judges (Neil Gorsuch, Brett Kavanaugh, numerous appellate and district court judges) on.

To be sure: Democratic state attorneys general have made a habit of obtaining nationwide injunctions from judges who are in tank for the Trump Resistance; the Roberts Court is still temporizing; and the Supreme Court commentariat is treating us to endless harangues over the Court’s lack of “legitimacy.” All that said, increasing GOP dominance over the federal courts is a given. And unlike the Washington Post’s guardians of political decorum, I for one am not overly perturbed by the partisan nature of the brawl or, for that matter, by the fact that a conservative Supreme Court majority might long outlive the political coalitions that brought it to power. For good or ill, partisan judicial entrenchment is the usual form of constitutional politics in America. It’s a bit late to get all prissy about it.

Concerns about accomplishments and potential problems on the horizon begin with the question of what the program of “legal conservatism” actually is. What is distinctly conservative and distinctly constitutional about it? The conventional answer: originalism. Surely protecting (or rather, recovering) the original Constitution is a constitutional project, and it is conservative in a broad and good sense—no?

Jesse Merriam shows why that answer is problematic. With a caveat briefly noted below, the author follows the conventional approach of dating (modern) legal conservatism’s origins to the advent of the Reagan administration and to the contemporaneous founding of the Federalist Society and its rapid ascent under originalism’s banner. Less conventionally (but rightly, to my mind), he places the rise of the legal conservative movement in the context of the conservative politics of that time.

Oversimplifying the story a great deal, the Reagan Coalition fused three disparate intellectual traditions—economic libertarians, social conservatives, and foreign policy hawks—which corresponded roughly with, or at least overlapped with, three political constituencies: business, religious conservatives, and “Reagan Democrats.” The bare bones originalist proposition that judges should interpret the Constitution, not invent a new one, united everyone I just named. Libertarians might get an original Takings Clause with teeth and perhaps a Commerce Clause with claws. Traditionalists (the word Merriam uses to denote social conservatives) might pocket a reversal of Roe and of the Warren Court’s civil rights and criminal justice adventures. Hawks might win a “unitary executive.” Better yet, originalism promised to unite these disparate constituencies and their aspirations under a wide umbrella that could be described as politically neutral. There is nothing partisan or ideological about vindicating and venerating our founding charter, is there? 

The irony—perplexity? paradox?—is that legal conservatism seems to have triumphed now, at a moment when the political conditions that initially spurred it have ceased to obtain. The Reagan Coalition is no more. President Trump, so very fond of the 1787 Constitution that he loves all 12 of its articles, seems to lack a constitutional program beyond judicial appointments. (I am putting this as mildly as possible.)  

Originalism for its part seems to have emerged victorious, both organizationally—as illustrated by the Federalist Society’s stupendous growth and outsized influence—and intellectually. Notoriously, as Merriam observes, everyone is an originalist now. Justices Elena Kagan and Sonya Sotomayor sailed through their nomination hearings as avowed originalists, and even the Anti-Federalist Society—formally known as the American Constitution Society—propounds nominally originalist positions. 

That triumph, as Merriam also notes, has come at a price. There is no longer anything particularly conservative about the project. Originalism has retained its neutral airs by retreating into increasingly arcane linguistic theories that permit ready adjustment to changed political conditions (for example, the spectacular triumph of the gay rights movement). One might say that originalism has become a Unitarian Church for the legal profession: Anybody is welcome, provided you believe there is one Constitution, at most. In Jesse Merriam’s provocative formulation: “The legal conservative movement’s alignment with originalism might not have neutralized judicial decisionmaking, but it has neutralized something: conservatism.”

What are we to make of all this? I propose to consult a towering authority on constitutional politics.

Bruce!

Not “the Boss” (for a change) but Yale Law School Professor Bruce Ackerman.[1] In a justly famous series of books, he interpreted the New Deal as a “constitutional moment,” right up there with the Founding and the Civil War Amendments, in which political leaders, speaking authentically for “We the People,” legitimately (though extralegally) created a new Constitution. The obvious difference is that the New Deal Revolution was extratextual and was accomplished, after 1938, through judicial appointments. Suspend doubts over the curious idea of non-textual constitutional amendments—what matters for present purposes is Professor Ackerman’s examination of the “Reagan Revolution” against the benchmark of the New Deal. 

In Ackerman’s telling, Reagan’s presidency had the potential, and certainly the aspiration, to become constitutionally transformative, just like Roosevelt’s. In both cases, Presidents mobilized a legitimating theory to challenge the then-dominant understanding of the Constitution. FDR promoted the Frankfurter-Landis-Hart vision of progress, expert government, and “Legal Process.” In the case of Reagan and constitutional originalism, it was propounded in the heady 1980s not just by renegade law students and dorky law profs but by Attorney General Edwin Meese and the Department of Justice’s Office of Legal Policy.

In both cases, I have observed (or was it Bruce?), the initial thrust was to effect constitutional change by taking the federal courts out of the game and letting political institutions, especially presidentially directed agencies, do their thing. (That’s how Chevron fits with Erie Railroad, and how originalism’s “unitary executive” theory fits with FDR’s well-warranted indignation at Humphrey’s Executor, which held that the President can’t fire the official in charge of a big chunk of his agenda.) 

In both cases, the constitutional project was to be accomplished through judicial appointments. However, where Roosevelt succeeded, Reagan failed. Instead of the late Robert Bork (on Ackerman’s somewhat doubtful account a jurist with a mind to tear up the New Deal Constitution), we ended up with the vaguely conservative Justice Anthony Kennedy. 

And so the constitutional moment passed, and our politics returned to normal. Or did it?

One can give an Ackermanian rendition of our present moment as a delayed triumph of the Reagan Revolution’s constitutional project. As Professor Ackerman himself explains in a new and riveting book on Revolutionary Constitutions around the world, it isn’t unusual for constitutional movements to coalesce and to develop institutional muscle only over time. Nor is it at all unusual to see the constitutional projects of charismatic politicians (Alcide de Gasperi, for example, or Charles de Gaulle) implemented at a later time by hacks and clowns and even by authoritarians who try and then fail to govern by emergency decree (Indira Gandhi). Nor, finally, is it at all unusual for constitutional courts to bide their time in asserting a constitutional understanding that transcends the old order. 

That in fact has been the pattern in Italy, India, France, and other countries—including, come to think of it, ours. The Marshall Court never again exercised the judicial review power it had asserted in its passive-aggressive Marbury decision. And the Roosevelt Court spent its first 15 years demolishing pieces of the old order and cutting the President slack, most notoriously in Korematsu. The Court did not throw its weight around until Chief Justice Earl Warren’s and Justice William Brennan’s arrival in the 1950s, long after the New Deal moment had passed.

At that point—to note a further present-day parallel—the original New Deal ideology, which told the federal courts to get the heck out the way, had to be reformulated to legitimate a far more activist Supreme Court and its creation of a Constitution for “discrete and insular minorities.” Originalism in its dominant versions has traveled on a similar trajectory, from “judicial restraint” to “judicial engagement”; from deferring to administrative agencies to “Overrule Chevron!” orthodoxy. If you want to enshrine and cement a new constitutional understanding, that has to be your posture.  

The “delayed triumph” story might not be and probably isn’t the story Bruce Ackerman would tell, or like to tell; and I am not fully convinced of it myself. But it has a certain plausibility, does it not? 

If This Is Right, Then What?

In important respects, the just-so story sketched above maps onto Jesse Merriam’s view of the landscape. It prompts his question as to whether originalism, at this point, can still serve as a legitimating conservative theory of the Constitution.

To ask that question is not to suggest abandoning originalism, or to contend that it is somehow wrong. Operationally, any exercise in constitutional politics demands a legitimating, mobilizing, and unifying theory, and it is hard to see what other than originalism could have served or could now serve those functions. At a theoretical level, moreover, some form of originalism must be right, and the same is true of the complementary commitments to textualism and formalism. The question is whether originalism is (still) enough to serve as a legitimating theory. 

Jesse Merriam says “no,” and I think that, too, is right. If I understand him correctly, the author proposes to supplement, reformulate, or perhaps transcend originalism in light of an earlier conservatism’s traditionalist, natural law-ish modes of thought that were cast aside by a harshly positivist originalism. Like Peter Lawler and Richard Reinsch, he wants a constitution in full. I have considerable sympathy with that project; I’ll add two supportive notes of caution. 

For starters, academic originalism has, for a painfully obvious reason, jettisoned the traditionalism Jesse Merriam wants to reintroduce. That reason is powerfully explained by Douglas Laycock of the University of Virginia School of Law (a prominent, thoughtful, and effective defender of religious liberty, though no one’s idea of a conservative). According to Laycock, religious constituencies in America, like the Catholic Church in France long ago, are beginning to learn that it’s not a good idea to lose a revolution. The sexual revolution has triumphed, irreversibly; and in terms of constitutional culture and understanding, religious conservatives (not coextensive with, but an important part of, the “traditionalist” camp) will have to beg for mercy and morsels. 

They can, perhaps, refuse to sell wedding cakes to gay couples so long as their heterodoxy is not based on religion (a.k.a. “animus”) but on “free speech.” They might get to keep old crosses on public lands so long as they don’t propose to erect any new ones. However, Obergefell won’t fall. And, if the Supreme Court is of a mind to overturn Roe v. Wade, it will have to do so on its own. Originalism’s academic mandarins will stroke their chins and mutter something about the manifold meanings of “meaning.” 

The other note of caution arises from the Ackermanian juxtaposition of the New Deal and the Reagan Revolution or, more precisely, the constitutional dimension of those moments. Some leading New Deal lights served on the Supreme Court (Felix Frankfurter, William O. Douglas); many more, on lower courts. A far greater number joined or returned to law-school faculties.  They got to own those institutions by inventing entire curricula (most important, Henry M. Hart and Herbert Wechsler’s capstone “Federal Courts” course, long since de rigueur for any law student who wants to go near a federal court), and by writing canonical textbooks and treatises not just on ConLaw but also on Administrative Law and numerous subfields. 

We are nowhere near that dominance. Merriam notes the obvious fact that conservative law profs are still an exotic species. As for the curriculum: I still use, as I must, Hart and Wechsler’s Federal Courts textbook (while explaining, as best I can, that it’s a paean to FDR’s Constitution). Then, too, the leading (perhaps only) originalist Administrative Law treatise (Gary Lawson’s) is basically unteachable because it declares the whole enterprise unconstitutional and so, what are we doing here? 

For all that, I join Jesse Merriam in counseling confident hope. The law-school dominance problem is too obvious to have escaped the Federalist Society’s attention and creative engagement; it just takes time. The question of whether originalism is quite enough has emerged as a live subject of debate, prominently including this splendid web site. And even the project of rethinking the orthodoxies of Federal Courts and Administrative Law has begun in earnest, by an increasing number of sophisticated scholars.

“Onward and Upward,” my law school’s official motto, is a loose translation of semper procedere. That’s traditional and Latin, and therefore it must be right.

 

[1] I mean no disrespect by the first-name subhead. At a Yale Law School panel discussion I attended many years ago, Professor Ackerman nodded benignly at an audience member’s question about the constitutional architecture and responded, “As Madison once said . . . ”—and, pausing with what seemed genuine puzzlement, continued: “ . . . or was it Bruce?” Bruce it is.

Comments

  1. Yes, I think so Bruce. Constitutions around the world are human attempts to repeat the Ten Commandments without mentioning or crediting God or the Magna Carta
    1 “obey authorities”. 2 “SKIP”. 3 “You shall not broadcast obscenities”. 4 . “Remember to value times of leisure.” 5 . “Honor your father and your mother.” 6 . “You shall not murder. 7 . “You shall not commit adultery.” 8 . “You shall not steal.” 9. “You shall not bear false witness against your neighbor.
    10 . “You shall not covet your neighbor’s house; you shall not covet your neighbor’s wife, nor his male servant, nor his female servant, nor his ox, nor his donkey, nor anything that is your neighbor’s.”

    Natural laws exist and are known to be true simply by being born. Male or female servants mentioned in the last commandment does not imply a subjugated class or race

    conservatism : a political philosophy based on tradition and social stability, stressing established institutions, and preferring gradual development to abrupt change specifically : such a philosophy calling for lower taxes, limited government regulation of business and investing, a strong national defense, and individual financial responsibility for personal needs (such as retirement income or health-care coverage) – per Merriam-Webster

    Roe v Wade was honorable law for a time but is now outdated. I will both: 1) pursue the end of this once honorable ruling before United States’ elderly Justices from Districts up to SCOTUS, and 2) elucidate the public. There is absolutely no room for honorable debate any longer. Honorable Civil War; yes. Honorable debate; NO. God should never be involved in any law or any conservative political theory.

    Marriage is a joint agreement to share intimacy. All humans naturally desire intimacy with another.
    Marriage is the traditional way of expressing this drive and limiting hostilities. This contract is traditional. A conservative homosexual would rather express intimacy within a marriage than outside it. Obergefell was correct and was Conservative. Roe was conservative “for a time”. Citizens United was a wild mistake as Antonin Scalia admitted and apologized for on Feb 26, 2015.

    • Perhaps you might rethink your rather chaotic and counterintuitive logic in terms of an unfathomable intellect and power that chose the title “God” to be a bit more amenable to people living in stone houses with whom conversations about quantum mechanics would take a few thousand years of slow progress.

      The actual existence of such an ineffable intellect would actually serve to provide center.

    • “However, Obergefell won’t fall.”

      What separates Marriage from every other form of Loving relationship, is the ability and desire to exist in relationship as husband and wife, and thus be married to each other. Marriage does not discriminate because marriage consists of one man and one woman, united in marriage as husband and wife. The Covenant Of Good Faith and fair dealing , which exists in both The Sacrament Of Holy Matrimony, as well as the marriage contract, precludes a husband and a wife, from engaging in of any act, including any sexual act that would deny the inherent Dignity of that particular man and woman, existing in relationship as husband and wife.

      Now that The Supreme Court has removed the necessary elements of a valid marriage, which is the ability and desire to exist in relationship as husband and wife, and denied the Sanctity of the marital act, which is Life affirming and Life sustaining, and can only be consummated between a man and woman, united in marriage as husband and wife, discriminating against the essence of being a husband or wife, and if there be children, the essence of being a father, or mother, invalidating the validity of a valid marriage, while promoting fraud and the sin of adultery, simultaneously, since in order to be married, it is no longer necessary to exist in relationship as husband and wife- The Supreme Court has made it possible for any relationship to be defined as marriage, if one so desires, and thus, according to The Supreme Court’s decision, that changed both the spirit and the letter of the Law, anyone can now claim a right to marital benefits.

      One can know through both Faith and reason, that those persons who desire to exist in relationship as husband and wife, and thus be married to each other, if they desire to have their covenant of good faith and fair dealing affirmed and recognized, should be married in a Church that affirms the Sanctity of the marital act, and thus does not discriminate against the essence of being a man or a woman, a husband or a wife, and if there be children, does not discriminate against the essence of fatherhood or motherhood, but rather affirms the inherent Dignity of being a son or daughter, brother or sister, husband or wife, father or mother, and thus the inherent Right of every human person to be treated with Dignity and respect in private as well as in public.

  2. The ‘original’ Constitution was ‘trinitarian’, not unitarian, though the essay does denote the drift. And, as such, did not embody an ideology, but was built upon a Decalogue that was not declared, but codified long after a Divine frustration, thereafter resulting in Divine intervention to work a personal redemption. There is no escaping the religious dimension, particularly after recognizing that, of all religions, Christianity has not only weathered the storm of mass and sustained persecution, prosecution and execution, but, indeed, has expanded from the experience and goes on proclaiming His final triumph where and when ‘He has put all things under His feet’ 1 Cor 15: 20-28. The American ‘revolution’, like that of the Dutch and the English was not like the French nor the Russian, neither ideal nor ideological, but anchored in a resistance against encroachment on legal rights and religious exercise already possessed, themselves neither aspirations nor expectations, and there from the practice, not just the thought. And the idealism of originalism, even taken to ideological dimension, a forte of modernist abstraction, cannot supplant the wholesome foundation of our law and religion which continues to adequately address and inform an increasingly Corinthian culture. The Academy’s fracturing ‘departmentalization’ is at the root of a decay of e pluribus unum. It has certainly contributed to the compression of law to right, from practice to aspiration, from corpus to amendment as the centralizing tendency of our jurisprudence, and there to the withering of sound Constitutional structure in the separation to the deviance of concentrating the law maker, the executive and the judge under the same roof to the detriment of fairness and impartiality, prerequisites to due process and equal protection. Back to the ‘old path’.

  3. An urbane essay that is sufficiently devastating to nix the author’s own “confident hope” and plea for patience in the prospects for legal conservatism. For, in light of the inexorable and (to the author) irreversible march of progressive judicial outcomes, clever appropriation of originalism by progressive jurists, and dominance of progressive legal thought over the law schools, what really has originalism achieved and what realistically can it be expected to attain? Originalism would be out of business if it did not accept judicial overreach as the norm, but such dominance is unhealthy for the polity and must reckoned with by conservatism—including legal conservatism—outside of judicial “constitutional politics.”

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