Is Scalia’s Originalism—Indeed, Constitutional Self-Government–Passé?

The eternal temptation to read one’s own values into the Constitution beguiles even religious conservatives espousing “natural law”

A revised version of this essay originally appeared in the April/May 2020 issue of Chronicles as “Faux Originalism” (here). Thanks to How Appealing, and Real Clear Policy (here)!

The U.S. Constitution is, by its terms, the “supreme law of the land,” whose ultimate interpretation is entrusted—by longstanding custom if not by explicit textual direction—to the U.S. Supreme Court. Accordingly, it is vitally important to divine the true meaning of our fundamental law. When a state or federal law is alleged to conflict with the Constitution, how are courts supposed to resolve the conflict? How can citizens satisfy themselves that the black-robed oracles purporting to interpret the Constitution are doing so accurately (or determine that their Delphic pronouncements are bogus)?

With many contested issues of public policy ending up in court, to be finally decided as cases involving constitutional law, these questions are more pressing than ever. Since the heyday of the Warren Court in the 1960s, unelected federal judges have asserted primacy over fundamental aspects of our lives, including issues such as abortion, marriage, immigration, voting, education, pornography and obscenity, law enforcement, capital punishment, welfare benefits, racial preferences, religious expression, and the power of administrative agencies. 

Legal scholar Lino Graglia, who taught for over 50 years at the University of Texas law school, charged that a clique of life-tenured judges—a “tiny judicial oligarchy”—has usurped “our most essential right, the right of self-government,” through a body of constitutional law that “has very little to do with the Constitution.” Graglia contends that many judicial decisions amount to no more than “the policy preferences of a majority of the Court’s nine justices.”  In short, judges have improperly arrogated power to themselves by departing from the Constitution’s text.

In response to the activism of the Warren Court (and the barely-better record of the subsequent Burger Court, appointed by President Richard Nixon), beginning in the 1970s conservatives led by Robert Bork advocated a jurisprudence of “original intent”—hewing to the original meaning the Constitution, based on its text and history. At the time, following decades of heedless activism, this was a bold–even startling—position. In a 1982 article in National Review, Bork famously stated that “The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else.” Like the boy who pointed out that the emperor was naked, Bork’s critique was devastating.

Famed jurist Antonin Scalia and others tweaked “original intent”—which focused on the subjective intentions of individual Framers—into a more general inquiry into the original public meaning of the constitutional provisions when they were enacted and ratified. How were the words understood at the time they were adopted? This is the doctrine of constitutional originalism.

Originalism, now accepted—albeit with many variations–as an influential theory of constitutional interpretation, served as a check on fanciful theories of constitutional interpretation advanced by liberal scholars and jurists. Unapologetic activists regard the Constitution as a “living” document that can (and should) be adapted to suit the evolving needs of society—in the estimation of the self-anointed elites who dominate legal academia. Taking seriously the original public meaning of the Constitution constrains extra-textual flights of fancy such as the “penumbras, formed by emanations” that animated the activist decision in Griswold v. Connecticut (1965), which recognized a “right of marital privacy” that precludes state regulation of contraception.

Griswold’s discovery of an unenumerated (or unwritten) constitutional right paved the way to the invention of abortion rights in Roe v. Wade (1973), the right to engage in homosexual sodomy in Lawrence v. Texas (2003), and, ultimately, the right to same-sex marriage in Obergefell v. Hodges (2015). The impact of originalism, although not sufficient to prevent Obergefell, produced a narrow 5-to-4 decision in that case, unlike the lopsided 7-to-2 margins in Griswold and Roe. Conservatives console themselves with the hope that President Trump may eventually appoint an originalist majority to the Supreme Court; Trump’s excellent picks, Neil Gorsuch and Brett Kavanaugh, join Samuel Alito and Clarence Thomas to form a solid originalist bloc, with Chief Justice John Roberts increasingly casting a pivotal (and unfortunately Kennedy-esque) swing vote. One more solid Trump appointment could be decisive.

Non-originalist theories are not limited to the political Left. On the Right, some conservatives and libertarians have espoused constitutional law theories derived from “natural law” (a powerful force in Catholic theology), the principles of the Declaration of Independence, and other extra-textual (or doctrinally-implausible) sources.  This category includes the late Harry Jaffa (Claremont), Hadley Arkes (Amherst), Richard Epstein (Chicago, NYU), and Randy Barnett (Georgetown), although some of them claim to be originalists (and even risibly claim that judicial restraint is a variant of the “living” Constitution). 

The motivation of such “conservative constitutional revisionists” (as Bork described them in his 1990 magnum opus, The Tempting of America) is the same as their counterparts on the Left: If one can conveniently “find” one’s policy preferences embodied in the Constitution, the attainment of one’s goals rests on mustering five votes on the Supreme Court rather than electing, persuading, and maintaining a majority of sympathetic legislators at the state or federal level. The allure of such constitutional fantasies is heightened by the reality that politics is often a fickle and fragile tool for achieving desired policy results. Bork called this allure a temptation to substitute personal predilections for legitimate constitutional interpretation, and noted that succumbing to it ineluctably turns a judge into a legislator.

In the view of an originalist, the Constitution puts certain things off-limits to political majorities, either expressly in the text or implicitly in the constitutional structure (such as federalism or the separation of powers). A principled originalist judge will enforce the Constitution as written, but otherwise will not override the political branches merely because he disagrees with the policy outcome. As Bork explained, “in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities.” If adhering to the Constitution as written, a principled judge will defer to the political branches absent an express constitutional provision proscribing majority rule.

Bork and Scalia both rejected—emphatically—the notion that unwritten principles of “natural law” lurked invisibly in the Constitution and warranted the judicial invalidation of state or federal laws that did not otherwise contravene an enumerated (or written) constitutional right. Bork archly remarked that “Judges, like the rest of us, are apt to confuse their strongly held beliefs with the order of nature.” Scalia scoffed at the idea that the Constitution—which he termed “a practical and pragmatic charter of government” –contained enforceable “aspirations” or that abstract “philosophizing” was a substitute for concrete and specific textual commands. During their lifetimes, Bork and Scalia were able to keep the revisionists at bay on both the Left and the Right. Alas, Bork passed in 2012, and Scalia followed in 2016. Already the revisionists are dancing on their graves.

With the legal academy dominated by progressives, and the handful of center-right legal scholars mainly consisting of libertarians, the Bork/Scalia conception of originalism is being seriously challenged. Judicial restraint is in decline, and various formulations of “judicial engagement” are ascendant in academic circles. On the Right, some theorists advance “natural law” arguments that would superimpose their policy preferences onto the Constitution, sans text. In many cases, those policy preferences—e.g., opposing abortion, supporting traditional marriage, promoting the family, protecting property rights and economic liberties—are legitimate conservative goals, but constitutional government dictates that public policy be enacted through the political process, not by judicial edict.

Here is an example: [1] Gerard V. Bradley, a respected law professor at Notre Dame, recently wrote an essay for Public Discourse (published by the Witherspoon Institute) entitled “Moral Truth and Constitutional Conservatism.”  Reacting to the prevailing ethos of secular nihilism evident in the Supreme Court’s abortion jurisprudence (exemplified by the widely-ridiculed “mystery passage” in Planned Parenthood v. Casey [1992]), [2] Bradley argues that judges must rely upon “moral and metaphysical truths that lie beyond the Constitution” in order to interpret the Constitution. What are these unwritten “truths”? Bradley offers, as an example, “answers to such foundational questions as: when do persons begin?… Which propositions about divine matters are answerable by use of unaided human reason, and which require access to revelation to answer?” This is code for “natural law.”

Bradley unconvincingly calls his approach “originalism,” but it sounds suspiciously like the type of Rawlsian moral philosophy masquerading as constitutional theory that was commonplace on the Left in the 1970s. Bradley declares that “today’s conservative constitutionalism is inadequate” to turn the tide against the vortex of activism represented by the Mystery Passage. Given the state of “breathtaking subjectivism” evident in decisions from Casey to Obergefell, Bradley charges that judges cannot return to a neutral role as umpires, merely calling balls and strikes. “For decades, … constitutional conservatives have diluted [constitutional interpretation] with a methodology of restraint, a normative approach to the judicial task marked by an overriding aversion to critical moral reasoning.” (Emphasis added.) Returning to a neutral role would, Bradley avers, constitute “philosophical abstinence.”

Accordingly, judges should rule based on their own “moral reasoning” (i.e., personal policy preferences). Deferring to political majorities is inadequate, an apocalyptic Bradley posits, because “We have passed a tipping point where damage control amounts to no more than a slow-walking surrender.” The implication is that conservative judges, instead of simply overruling Roe v. Wade and leaving the regulation of abortion to the states, should ban the practice altogether on moral grounds; instead of overruling Obergefell and leaving the definition of marriage to the states, judges should restrict the institution to one man and one woman, and so forth. Judges should decide these matters, Bradley suggests, because a debauched and godless populace can’t be trusted to make the right decisions.

Bork’s late-in life response to judicial activism in aid of the culture war was to advocate limits on judicial review, so political majorities could govern themselves without undue interference. In contrast, proponents of natural law and similar contrivances seek to expand the judicial role so appropriately- enlightened mandarins (on “our” team) can impose their agenda on the polity.  This is not how a constitutional republic is supposed to work, and not what the Founding Fathers intended. Bradley’s invitation for judges to “replace bad philosophy with good philosophy” finds no support in Federalist 78. Fidelity to the Constitution self-evidently cannot be achieved by looking “beyond the Constitution,” and it is absurd to call such an end-run “originalism.”

Has legal academia become such a fever swamp that even erstwhile conservatives have become advocates of the “living Constitution”? Perhaps so. Political scientist Greg Weiner (Assumption College), a Madisonian scholar and disciple of the late George W. Carey (Georgetown), has written an important new book, The Political Constitution: The Case Against Judicial Supremacy (University Press of Kansas 2019), pushing back against the emerging camp of center-right legal scholars advocating “judicial engagement”—a euphemism for empowering judges to negate popular self-government. It is unimaginable that such a book would be necessary even a decade ago, but the legacy of Bork and Scalia is unraveling before our eyes.

Weiner trains most of his fire on libertarians such as Timothy Sandefur, Clark Neily, and Randy Barnett (who inexplicably has become the resident guru in Federalist Society circles in recent years), but also includes in his critique various conservatives espousing natural law, such as Hadley Arkes and Harry Jaffa. Weiner’s wide-ranging defense of the res publica—the political community as a whole and the root of the word “republic”—serves as a broadside against anti-majoritarian usurpation of democratic rule.

Is the legal culture debased and corrupt? Certainly. Is the Supreme Court’s constitutional jurisprudence an Augean stable badly needing to be cleansed? Absolutely. Have activist decisions over the past 50 years done grave damage to American institutions? Without a doubt. The solution, however, lies in restoring the judiciary to its intended role as the “least dangerous” branch of government, not further eviscerating constitutional democracy by encouraging unelected judges to impose their subjective moral judgments on political majorities without their consent.

Ordered liberty is to be found in the filtered political decisions of “We the people.” Majority rule is not tyrannical; minority rule would be. Consent of the governed is only possible through democratic institutions—the rough-and-tumble of representative government. These concepts are enshrined in the Constitution; “natural law” is not.  The artifice of deciphering “invisible ink” in the Constitution—unwritten moral truths, revealed to our robed masters in séance-like fashion–is a license for judicial activism. Disaffected conservatives tempted to surrender their sovereignty to federal judges would be well advised to read Weiner’s illuminating book, or to re-read The Federalist Papers. Americans are capable of governing themselves quite well, if judges would only let them.

1.  I will not belabor the ongoing project of Jaffa’s acolytes, sometimes referred to as “Claremonsters,” to override the Constitution with the Declaration of Independence. Curious readers can begin here: “George Will’s Libertarian Turn,” Law & Liberty (July 12, 2019); “‘Bad Originalism’: Harry Jaffa’s Toxic Constitutional Legacy,” Misrule of Law (April 17, 2019); and “Making Constitutional Law Great Again,” American Greatness (March 24, 2019).

2. “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Robert Bork mocked this sophomoric passage as “New Age jurisprudence.” Stephen Presser has condemned Casey as “probably the single worst opinion yet written by Supreme Court Justices.”

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