Donald Trump has the best opportunity of any President to create a judiciary that follows the Constitution as written.
Ilya Somin has disagreed with me that Trump is likely to be better for constitutional jurisprudence than Clinton. But his arguments rely on the implausible premise that Trump is likely to change the jurisprudential commitments of the Republican party. Even more importantly, he does not address the elephant in the room: Clinton’s appointments would likely return us to a Court unconstrained by our fundamental law.
Ilya is right that if Trump could change the Republican’s basic philosophy of judges from originalism to something else, that would itself impose long-term harm to nation. But Trump’s election is unlikely to have this effect. Trump is not coming into power with a parliamentary majority and or even at the head of a well entrenched ideological movement. The way to think of Trump is that has rented the party for his own ambitions and that he will be forming a coalition with orthodox Republicans who will make up the vast majority of Republicans in the legislature. He is thus going to have to deal with the Republicans who have an independent power base and who hope to be there long after he leaves. That not only includes legislators but the Republican establishment. And as in coalitions generally, he will focus on the issues most important to him where there is least resistance from his partners.
This is the last in a series of posts excerpting my speech at the Federalist National Convention, arguing that only religious freedom, not pervasive religious sentiment, is necessary to civic virtue under our constitutional order. Here I show that periods of greater religiosity do not coincide with greater constitutional fidelity:
One test of whether religion is necessary to preserve the constitutional order is whether periods of greater religiosity coincide with greater fidelity to the Constitution itself. And if we look at the course of American history, we do not find a high degree of correlation, let alone a causal connection, between periods of greater religiosity and fidelity to the Constitution. History also fails to show a positive correlation between secularism and constitutionality. Rather, it underscores the great dangers to our constitutional order can come from either religious enthusiasm or secular utopianism. Both share an ecstatic approach to politics that finds the Constitution inconvenient, as its constraints protect a society generated by the spontaneous order of freedom. It is not that only that the Constitution can be preserved by the liberal order it encourages, but it can be destabilized by demands for government-enforced morality that is too encompassing.
In a very interesting recent book, The Evangelical Origins of the Living Constitution, John Compton makes the persuasive case that living constitutionalism—the theory that upends our written Constitution—has its beginning in the evangelism that originated in the second great awakening. These evangelicals and their religious descendants became unhappy that the Constitution as written facilitated such vices as alcohol and gambling by protecting interstate commerce and vested rights in property. They therefore promoted legislation that empowered the federal government, as opposed to the states, to regulate morals despite the limitations of the enumerated powers. They also wanted to destroy property used for immoral purposes despite the protection of vested rights.
The precedents set by this movement became key for progressive arguments. Just as the Constitution could be transformed to permit moral reform on a grand scale, so it could justify federal control of the economy.
At the Federalist Society Convention I had a debate with my friend, Professor Robert George, on a famous quote by John Adams: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” In the next three posts, I will excerpt my speech. And then I will add a postscript on Washington’s Farewell Address. Here is the beginning:
John Adams famously said “Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” His claim assumes that we can afford to have the limited government created by the Constitution because the people are already possessed of an abundance of virtue—indeed crucially virtues fortified by religion. But the Constitution itself reflects a very different faith: that a people blessed with a constitution like our own are likely to develop the virtues of self-restraint and social trust needed in order to thrive.
Religion can certainly help actualize virtues but so can other kinds of culture and practices. And the Constitution is premised on the enlightenment view that its very design can create the necessary virtues for civic life from elements of human nature, including raw self-interest. The constitutional structure thus maintains itself and does not necessarily depend on any religious system.
This past weekend (October 23-24), George Mason Law School’s Law and Economics Center, in cooperation with the Council on Public Policy (a German think tank) and the Federalist Society, concucted a Transatlantic Law Forum on “The Administrative State and its Law.” Excerpts: Scholars, pundits, politicians, and even Supreme Court Justices have come to lament that the administrative state—ill suited to the country’s constitutional culture in any event—appears increasingly beyond effective political and judicial control. Among the proposed remedies, perplexingly, is a quintessentially “European” product: bureaucratic legalism, either through more specific legislation or more aggressive judicial controls (or both). All the while,…
There is happy news from state supreme courts—more justices committed to correct methods of legal interpretation are being appointed. To name just two of the most recent additions: Rebecca Bradley of Wisconsin and Joan Larsen of Michigan as well as a still relatively recent addition, David Stras of the Minnesota Supreme Court All three have fine credentials. Stras and Larsen were professors before ascending the bench, and professors turned judges have often turned out to be the most influential of jurists.
The Federalist Society’s decision to establish chapters throughout the nation is in no small measure responsible for the flowering of state conservative jurisprudence. The Society was founded on law school campuses and then migrated to Washington, as some of its leaders took jobs in the Reagan administration. But creating a presence in the hinterlands then made it possible for lawyers of like mind to focus on the judiciary in their states. All too often, Republican governors had not paid much attention to judicial nominees’ stances on legal interpretation, believing that identification with the Republican party was enough to assure good decisions. But even Republican lawyers emerge from a legal culture that leans decidedly left, and the recognition and awards from that culture move judges to in that direction unless they come anchored in the right. The Federalist Society provides the merry fellowship that helps these jurists resist the temptation to drift.
The increase in the number of justices committed to fidelity to law on state benches has several good consequences.
For forty years, constitutional law has been dominated by the countermajoritarian difficulty—the concern about the capacity of the Court to flout the popular will. A strong version of this critique flows from the fear that the justices follow their own policy preferences in important cases, something that seems illegitimate since they are not elected. One response to the countermajoritarian difficulty is to dispute this premise and argue that actually the Court as a whole tends in relatively short order to follow the will of the popular majority. Barry Friedman’s The Will of the People is the most recent and articulate defense of this position.
But in an excellent article in the Georgetown Law Review, Neal Devins and Larry Baum show that Supreme Court justices respond at most indirectly and very imperfectly to the majority of citizens. They look at some of the evidence, comparing the Supreme Court decisions with popular opinion. They confirm what I had long suspected: the reason that law professors have been persuaded that the Court follows popular opinion is that they confuse the will of the majority of people with the will of the majority of law professors!
In the week that a new organization, Heterodox Academy, was established to press for more ideological diversity in academic life, the learned association in my own profession showed how much it is needed. The Association of American Law Schools (AALS) sent around a notice of its prospective annual meeting, highlighting its most prominent speakers. Of the thirteen announced, none is associated predominantly with the Republican party, but eleven are associated with the Democratic Party. Many are prominent liberals. None is a conservative or libertarian.
Five are judges, including Stephen Breyer, all appointed by Democrats. Another is the incoming Senate leader of the Democrats. Three others contributed predominantly to Democrats. One for whom no contributions could be found held a fund raiser for President Obama. Another worked for the Democratic side of the House Judiciary Committee during the impeachment of President Clinton.
It is true that Michael Bloomberg is also speaking. He has been at various points a Democratic and a Republican and is now an independent. Perhaps the AALS thought that a single person could create diversity through his many political avatars! But seriously, Bloomberg, who has crusaded for gun control and limitations on permissible ounces in a sugary soda, does not resemble a conservative or libertarian. He ran as a Republican in 2001 for Mayor of New York City because it was the nomination he could acquire.
Now my point is not to disparage the highlighted speakers. They are all eminent men and women.
It is hard to exaggerate how homogeneous are political views in the academic world. Law professors are the most liberal category among all lawyers who are themselves quite liberal. Many precincts within the university are even further left than the legal academy. But this nation is founded on the premise that the clash of views leads to better ideas and better policy. The ideologically monochromatic cast of our academic world should thus be of concern to many, regardless of their political perspective. That is why I am so pleased that a new organization, The Heterodox Academy, has been established to try to bring in a fuller representation of a wider range of views.
As Jonathan Haidt, one of the leading professors of social psychology, said in his welcoming post:
At HeterodoxAcademy, our contributors have documented the near absence of political diversity in many fields, and we have demonstrated the damaging effects that this homogeneity has on scholarship in those fields. We are not the first to do so. Scholars have been calling to this problem for decades… and nothing has been done.
This time will be different. We have come together to pool resources, analyze current trends in the academy, discuss possible solutions, and advocate for policies and systemic changes that will increase viewpoint diversity in the academy and therefore improve the quality of work that the academy makes available to the public, and to policymakers.
Members of this venture include well-known academics, like Professor Haidt and Steven Pinker as well as more obscure ones like this writer.
The Federalist Society is the most important civic organization formed in the last forty years. Even academics are coming around to the conclusion. In 2010 Steve Teles wrote a marvelous book, The Rise of the Conservative Legal Movement, which rightly gave the Federalist Society pride of place as an organization that held the legal right together by providing a place to debate fundamental issues. As Teles observed, because the Society did not take positions in litigation or before legislatures, it was able to attract both libertarians and conservatives who were united both by their antipathy to left liberal establishment and their view that the Constitution should be read according to its original meaning rather than as a document that changed with the times.
In a new book, Ideas with Consequences, Amanda Hollis-Brusky attempts to chart the Federalist Society’s actual legal influence, particularly on the Supreme Court. I reviewed the book Friday for the Wall Street Journal. While it is not as good a book as that of Steve Teles, it does show how ideas refined at the Federalist Society conferences have made their way into Supreme Court opinions, in such areas as the Second Amendment, federalism, and campaign finance regulation.
Oddly enough in a book which has Ideas in its title, Hollis-Brusky at times slights the importance of the intellectual environment the Federalist Society has created.