The Originalist Error

by Alykhan Velshi (Dec. 2006)

 

"There is no such thing as man in the world. During my life, I have seen Frenchmen, Italians, Russians, etc.; I know, too, thanks to Montesquieu, that one can be a Persian: but as for man, I declare that I have never met him in my life; if he exists, it is unbeknownst to me."— Count Joseph de Maistre (Œuvres complètes de Joseph de Maistre, 1, 74)

 

It is one thing to believe that government must only govern through the processes and procedures prescribed by law; it is quite another to believe that government is a creature of law and that it derives its legitimacy from the Constitution. Yet a goodly number of American conservatives believe precisely this, agreeing with, of all people, Thomas Paine, that adopting the Constitution was a generative enterprise. The distillation of this ostensibly conservative position into constitutional theory is called originalism. Imbuing the Constitution with trans-historical, sometimes spiritual, significance, originalists believe that the judicial function requires faithful adherence to the Constitution, for this is the fount of legitimacy. That any conservative could believe such nonsense shows how far removed originalism is from genuinely conservative thought.

 

Chilton Williamson, a former literary editor of National Review, offered a characteristically copacetic expression of the duality in American conservatism, which I think can help illuminate a discussion of the originalist error:

 

The primary distinction within the conservative tradition, almost by definition, is the most hoary one as well. It amounts to the difference between a conservatism founded uncompromisingly on eternal principles and the conservatism that appeals to historical context and the status quo, prudence, and pragmatism.

 

Strict adherence to the written Constitution, chock full of abstract wisdom and lumières promises, is originalism's hallmark. This philosophical position is accompanied by a temperamental one too, as originalism anathemizes anyone who disagrees with it as either un-conservative or eristic. Originalists, although they cloak themselves in the habiliments of history and justice, fail to understand that the U.S. constitution is, in fact, not the same as the Constitution gathering dust in the National Archives; that the much-feared "living, breathing constitution" is not a normative view, but a descriptive one; that reliance on the text of the Constitution is intellectually unsound; and that originalism will, in any event, soon be overtaken as conservatism's house judicial philosophy.

 

There are a few pieces of paper stored in the National Archives that make up a document frequently but erroneously called the Constitution of the United States of America. When speaking of the judicial function, originalists give this document paramount importance. The reality is that the United States has two constitutions, one written, the other unwritten. The unwritten constitution defies precise and concise definition, but it exists in the background of the political community, and includes the quotidian rules and customs that uphold standards of civilized behavior. It is the accumulation of various habits, norms, unexamined beliefs, and prejudices that define the United States.

 

The fatal originalist error is to ignore the unwritten constitution and privilege the written Constitution. Originalism assumes that the Constitution precedes the political and legal community and, through its provisions, legitimizes its rules-structure. However, to believe that the Constitution is the constituent power, and that the polity is the constituted power, is to gets it backwards, for surely it is an already-constituted political entity that must agree to a Constitution.

 

Joseph de Maistre, the savoyard lawyer and ultramontane legitimist, was the most fierce and eloquent critic of the notion that political legitimacy could flow from one "passionate outburst" (to use Isaiah Berlin's phrase). The idea that the Constitution was a compact between ruled and rulers required the prior existence of an elaborate network of conventions to ensure enforcement. This is the unwritten constitution. As the liberal thinker Isaiah Berlin explained, Maistre believed that "to classify, abstract, generalise, reduce to uniformities, deduce, calculate and summarise in rigid, timeless formulas is to mistake appearances for reality, describe the surface and leave the depths untouched, break up the living whole by artificial analysis, and misunderstand the processes both of history and the human soul by applying to them categories which at best can be useful only in dealing with chemistry or mathematics."

 

This is to say, not only does originalism provide an inadequate basis for explaining political legitimacy, it is actually distortive of the constitutional reality. The elaborate and hidden rules that characterize the unwritten constitution evolve through the effluxion of time, as taboos morph into established practices, and vice versa. Holding fast to the Constitution only widens the chasm between the unwritten and written constitution, undermining the basis of political legitimacy, not strengthening it.

 

The Greek philosopher Demosthenes warned, "To write a law is nothing, to make it wanted is everything." This, I believe, is doubly true, first because of the false sense of security written constitutions offer to democratic states, and second because the language of a written constitution is only an imperfect reflection of the unwritten constitution. The British conservative thinker Michael Oakeshott called a constitution's moral ideals "abridgments", approximations of our actual rights that do not account for the habits of conduct, atmosphere, circumstance, and character.  

 

Take, for example, the Great Writ. In the Constitution, the writ of habeas corpus is codified in the Suspension Clause of section nine of Article I of the Constitution, which supposes that, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." However, the constitutional character of habeas corpus is only imperfectly described in the Suspension Clause.

 

Invariably there are situations where suspension of habeas corpus is authorized that are not contemplated by the formal requirements of the Suspension Clause. For example, in a public emergency that is not a "rebellion or invasion"—say, the outbreak of a pandemic that requires the government to detain citizens for the duration of the emergency, or a series of debilitating terrorist attacks that do not rise to the level of an "invasion or rebellion"—the unwritten constitution will admonish judges to look the other way when habeas corpus is temporarily suspended.

 

Thus could as committed a Whig as A.V. Dicey write that there are situations, "when for the sake of legality itself the rules of law must be broken." When this happens, a judge's infidelity to the Constitution will be validated after the fact by history as well as law. Not all contingencies can be predicted beforehand, far less codified in a writing. Nevertheless, we know them innately when they arise, for they are part of the unwritten constitution. An originalist reading of the constitution does not, and cannot, adequately explain how such responses can be lawful, and this is not merely because they make for difficult constitutional taxonomy, but because originalism only imperfectly grasps the constitutional reality.

 

It is not a capitulation to the seductive but dubious reasoning of natural law to admit that legitimacy for legal acts can flow from a source other than the text of the Constitution. Originalism, by providing no coherent approach to the unwritten constitution, offers a cramped field of vision, and fails to explain how the written rights contained in the Constitution relate to the unwritten rights held by Americans. The rationalist idea underpinning the Constitution is based on the unfortunate urge to codify the laws of the land, even though these codifications and "abridgments" undermine established institutions and modes of behavior by seeking to replace them.

 

The originalist interpretation treats the Constitution as having an objective, trans-historical, and ascertainable meaning. This position is difficult to sustain. In fact, developments in originalist approaches to constitutional interpretation belie the notion that the Constitution has an objectively ascertainable meaning.

 

When interpreting the Constitution, originalists have for the most part rejected so-called "original intent" jurisprudence, which requires an inquiry into the intention of the drafters of the Constitution's text. Instead, the de rigueur practice is "original public meaning" jurisprudence, which inquires not into the intention of the framers, but instead what their language meant to a reasonable observer when the Constitution was ratified. The basis for rejecting "original intent" is because of the obvious epistemological problem of seeking to ascertain the purpose and intent of a group of eighteenth century American politicians; as well as because the Constitution was the product of bitter negotiations and compromises, and by definition, the language of compromise cannot have an objective meaning, which requires, at a minimum, common purpose and intent.

 

Precisely because of this, however, and this is one of the shrewder points Justice Breyer makes in his otherwise silly book, Active Liberty: Interpreting Our Democratic Constitution, much of originalism's moral force is undermined. An approach to constitutional interpretation that, for perfectly defensible reasons, uses textualism as a substitute for intent, cannot fully explain the written Constitution.

 

Originalism, moreover, practically invites a liberal response, based on the defensible position that the Constitution was, after all, a radical and liberal document. The Constitution was an attempt to, as it were, "immanentize the eschaton" by applying the Constitution's radical and abstract premises to today's policy dilemmas. All political and moral rights, as Oakeshott explained, are by definition instrumental, and immanent.  

 

Thus can Yale law professor Akhil Amar write:

 

The framers themselves were, after all, revolutionaries who risked their lives, their fortunes, and their sacred honor to replace an Old World monarchy with a New World Order unprecedented in its commitment to popular self-government. Later generations of reformers repeatedly amended the Constitution so as to extend its liberal foundations, dramatically expanding liberty and equality. The history of these liberal reform movements—19th-century abolitionists, Progressive-era crusaders for women's suffrage, 1960s activists who democratized the document still further—is a history that liberals should celebrate, not sidestep.

 

Do conservatives really want to lend their support to affirming at every opportunity the juristic applicability of a philosophically and temperamentally radical lumières document? Or should they instead seek to extricate themselves from the morass of utopian rights?

 

The Framers believed that conflict was the inevitable feature of most collectivities and that only the balm of politics could resolve this. The Federalist Papers enlarged this empirical observation into a conceptual framework by seeking to encourage the republican aspects of government, and discourage the popular aspects. As James Madison wrote in Federalist 51, "In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions."

 

The U.S. constitutional project tried to cabin the outlets for popular decision-making, while still maintaining popular legitimacy. As F.W. Maitland, the celebrated chronicler of writs, recognized, even though the authors of the Constitution created a "republican form of government", the fatal flaw of the Framers using democratic-input to temper the growth of arbitrary government only fed majoritarian democracy, the very bane of republican government.

 

This is not to rubbish the constitutional project, but to show how the unwritten constitution will always frustrate attempts to codify an ex ante normative framework for resolving what are, at their root, political disputes. Substituting politics with rationalist abstractions, as the Constitution does, may temper a particular political conflict on the frilly margins, but it will not resolve it. Debates over the proper size of and role for government will never be resolved by appeals to, for example, the Constitution's Commerce Clause.

 

The unwritten constitution confounds the Constitution not only through politics, but through science, too. Advances in medical science are making it possible to live longer, and delay the onset of senility and other manifestations of ageing: judges can therefore expect to serve on the bench longer. This biases the separation of powers system in favor of the judiciary, which is the only branch of government given life tenure. Moreover, since judges serve on the bench longer than they used to, each judicial vacancy becomes correspondingly more valuable, creating further dynamic imbalances in the political system.

 

In addition, social policy has changed the constitution forever. The spread of literacy, for example, severely undermined the republican form of government by reducing the power of political elites. It was Alexis de Tocqueville, after all, who admonished lawyers to "secretly oppose their aristocratic propensities to the nation's democratic instincts, their superstitious attachment to what is old to its love of novelty, their narrow views to its immense designs, and their habitual procrastination to its ardent impatience."

 

The spread of literacy and, hence, the creation of a popular media made this effort untenable. The regression from republicanism to majoritarian democracy was thus inevitable, and to pretend, as originalists do, that the constitution remained unchanged throughout, and that we should continue clinging to those provisions of the Constitution as if they were no longer, as a descriptive matter, an anachronism, is absurd.

 

Although originalism allows for constitutional change, it limits it to the onerous procedures contemplated by, and codified in, Article V of the Constitution. Thus does originalism reduce the constitution to a legal framework rather than a political one. However, this, I think, misunderstands the basic theory underlying the separation and balance of powers, which is crucial to the unwritten constitution. Admitting that the Supreme Court is, as a matter of law, the "final arbiter of the Constitution" tells us very little.

 

Instead, vesting the appointment of federal judges in the executive branch, and their confirmation in the legislative branch, introduces a great deal of politics into the system—so much so, I would argue, that it is inevitable that the constitution will evolve. Thus, notwithstanding section eight of Article I of the Constitution, "Congress shall have Power to declare War", presidents have, since the early days of the republic, launched numerous wars, small and large, without the consent of Congress, whilst retaining the ability to refuse to nominate judges who would limit that power.

 

This is why, moreover, originalism is doomed to failure as a judicial philosophy. Even now, originalism having mesmerized the conservative movement, and there being at least two confirmed originalists on the Supreme Court, as well as possibly another two whose approach to judging will reveal itself in the fullness of time, originalism is far from achieving jurisprudential dominance. And even if it does, this will not last. This is because originalism's obliviousness to the unwritten constitution is the source of its vulnerability, and its future decline.

 

Let us assume that originalists held a solid majority on the Supreme Court. The Court would, presumably, return the issue of abortion to the states, scale back the grant of power under the Commerce Clause, weaken prohibitions on state entanglement with religion, &c, &c. To wit, the Supreme Court would faithfully enforce the Constitution of 1789. Yet, we know in advance that this would provoke a response from the political branches.

 

This response may include Congress reducing, or indeed eliminating, judicial salaries, as well as the impeachment of judges who overturn too many laws. The President may refuse to nominate confirmed originalists, and the Congress deny consent to any nominee who does not publicly disclaim originalism. In less than a generation, an originalist majority can be reduced to a plurality, and, eventually, to an obscure minority. The political branches can torpedo originalism, and they can do so without feeling guilty that they are doing violence to the constitution, for this behavior is contemplated and accounted for in the unwritten constitutional structure, which will always frustrate the designs of the Constitution.

 

The only way for originalism to avoid this unhappy fate is to create a consensus among the political branches, a consensus strong enough to withstand the inevitable grumbling every time a law is ruled unconstitutional. Originalism fails as a theory by assuming that this consensus is unnecessary, and that it is sufficient to rely on willing judges enforcing an idealized Constitution; when, in fact, attempts to shape the unwritten constitution will prove more lasting.

 

In fact, if such a consensus in favor of originalism actually existed, the political branches would simply stop enacting un-originalist laws, thus making originalist judges largely redundant. Thus is the constitution—ever-evolving, always unwritten—the product of the day-to-day interactions between different political actors, rather than what nine justices say it is.

 

The salient question, then, is how conservatives should approach the task of judging. Rejecting the Constitution as the fons et origo of political legitimacy, and hence originalism's persuasive appeal, does not of itself require judges to abide by a particular judicial philosophy. In fact, the rejection of an ex ante normative framework in constitutional matters means that no meaningful juristic limits can be placed on judicial philosophy. What is more, the conservative political program has everything to gain from ceasing to cabin its policies within a rules-structure that its opponents do not respect.

 

As a result, conservative judicial philosophy must flow not from the Constitution, but from conservatism itself. Depressingly, since conservative judges today busy themselves poring over dictionaries from the late-eighteenth century, conservatism has been deprived of the philosophical contributions of its most thoughtful jurists. Consequently, a student of law with conservative leanings is better served reading the works of Count de Maistre, Maitland or even Viscount Bolingbroke than Justice Scalia, Judge Bork, or Judge McConnell.

 

Clearly, the utopian natural rights on which the Constitution was based are neither philosophically sound, nor particularly conservative. What is more, there is a basic political contradiction between the Constitution's humbleness and its arrogance: the positing of a limited role for government and support for sweeping political rights. What, then, is a conservative judge to do? To which judicial philosophy should he adhere? Tentatively, I believe there are two possibilities: unfortunately, although both are conservative, they are in other important respects diametrically opposed.

 

The first would recognize that the absence of any prior normative framework to limit judges suggests that the judicial function should be exercised modestly. Since, in a democratic system, judges are ipso facto less legitimate than their political branch counterparts are, a conservative judicial philosophy should be far more deferential to the political branches. There is, I believe, something worthwhile in recognizing that the judicial branch is both illegitimate but necessary, and that its illegitimacy admonishes quietism and modesty. Thus, the best judges will clarify the positive law, not vindicate abstract rights, far less expatiate on new ones. This judicial philosophy is temperamentally conservative, and only relatedly, and consequently, philosophically conservative. The obvious flaw of this approach is that when one side behaves with a modesty to which the other side does not feel bound to emulate, a politically undesirable ratchet-effect will kick in.

 

Most likely, then, the best approach, at least in the short-term, is for conservative judges to recognize that the judicial branch is no less influenced by political considerations than the executive or legislative branches. It was, after all, Chief Justice Edward Coke who, as early as the Case of Prohibitions in 1607, warned  of the universal temptation for the "incertain and crooked cord of discretion" to seep into the "golden and streight mete-wand of the law."

 

Surely, it is somewhat suggestive that no textual originalists are politically liberal, and no liberal judicial activists are politically conservative. Since both liberal and originalist claims about the correct judicial philosophy assume that there is a prior, and objective, normative framework to adjudicate constitutional disputes, that most judges' choice of judicial philosophy aligns so neatly with their political views is, to me at least, suggestive that no such framework exists, and that judging is really just an extension of political activism. Conservative judges will always consult their Merriam-Webster Second, liberal judges their New Oxford Dictionary of English

 

Thus, the conservative judge is advised under this approach to try to impose his political views as much as he can get away with as well as expand the power of his branch of government before his life tenure expires. If the judge is very pro-life, he should try to ban all embryonic stem cell research and criminalize abortion, as well as the solicitation and facilitation thereof; if he is a radical libertarian, he can vote to overturn the Fourth Coinage Act of 1873, assuming such a case presents itself for judicial consideration; if he is a Blackadder aficionado, expect a lot of opinions about "flogging servants, shooting poor people, and extending slavery to anyone who hasn't got a knighthood." And so on, and so forth.

 

The prospect of this is not nearly as frightening as one would suspect. Just as the institution of the presidency is strong enough to survive a bad president every now and again, so is the unwritten constitution capable of outlasting a few bumptious and eccentric judges. The optimal conservative judicial philosophy will evolve along with the very definition of conservatism. Does conservatism as an approach to politics require skepticism, modesty, and doubt; a positive agenda of some kind; or jusqu'au-boutiste resistance, and, if so, to what?

 

The answer to this question, I believe, should shape conservative judicial philosophy, and conservatism generally, more than a lumières constitution. Only then will Orestes Brownson's noble hope be realized: "that we have reached the term of our downward tendency; that radicalism has had its day; that a reaction has commenced, and that the mass of our people will recover from their folly, and henceforth not fear to be conservative."

 

Alykhan Velshi, the manager of research at the Foundation for the Defense of Democracies, is a lawyer in its Center for Law & Counterterrorism. He lives in Washington, DC. [email protected]

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