Originalism And The Fourth Of July

Scott Douglas Gerber | Law Professor

President Donald Trump has indicated that he is working hard to appoint “originalist” judges to the federal courts. He is correct to do so, especially because the alternative is for judges to act like legislators by reading their personal views into the Constitution and impose them on the rest of us. But as the United States celebrates its 242nd anniversary on July 4th, it is important to appreciate that there are two different types of “originalism” and that only one of the two truly honors who we are as a nation.

“Originalism” is a theory of constitutional interpretation that came to prominence during the Reagan Administration as an alternative to the so-called notion of a living constitution embraced by progressive judges and law professors. Robert Bork wrote an influential article about originalism in the early 1970s, but it was Attorney General Edwin Meese who brought originalism to public consciousness through a series of speeches in the mid-1980s. The Federalist Society, which was founded in the 1980s and which is playing a prominent role in recommending judicial nominees to President Trump, is likewise strongly committed to originalism as the proper method for interpreting the Constitution.

The legal literature exploded in the 1980s with an avalanche of articles both criticizing and defending originalism, and the commentary on the subject has continued unabated ever since. Books and articles about the history of originalism have been published, and the debate over originalism has now shifted from what Attorney General Meese famously called “a jurisprudence of original intention” to a self-styled “new originalism” that searches—sometimes via highly technical discussions of the philosophy of language—for the original public meaning of the Constitution’s text.

These dominant iterations of originalism can be fairly characterized as “conservative originalism”: an approach that dictates that judges may legitimately recognize only those rights specifically mentioned in the Constitution, or ascertainably implicit in its structure or history. In all other cases, conservative originalists argue, the majority is entitled to govern—to make moral choices—through the political process. “Liberal originalism,” by contrast, maintains that the Constitution should be interpreted in light of the political philosophy of the Declaration of Independence. Liberal originalism rejects both conservative originalism and the notion of a living constitution on the ground that they are post-hoc rationalizations for preconceived political results.

The conservatives’ initial call for a jurisprudence of original intention was a response to the liberal jurisprudence of the Warren and early Burger Courts, whereas the progressives’ notion of a living constitution was a reaction to conservative originalism. The “new” conservative originalists have endeavored to guide the decisions of the conservative Rehnquist and Roberts Courts, while many on the Left—“judicial minimalists” and “popular constitutionalists”—are presently trying to limit or eliminate judicial review itself so that the now-conservative federal judiciary cannot rollback existing precedents involving hot button social issues such as affirmative action and abortion. These newer theories, like the older ones, are too often merely partisan arguments masquerading as constitutional theory.

Liberal originalism insists that conservative originalists mischaracterize the Constitution as establishing a majority-rule democracy, a mischaracterization that is also made by many constitutional theorists of progressive political views. Because of the Framers’ desire to avoid what Elbridge Gerry called the “excess of democracy,” they created a republican form of government, not a majority-rule democracy. And in that republican form of government, the judiciary is to play a central role: chief guardian of the unalienable rights of the American people, especially of individuals and minorities. Briefly put, liberal originalism employs a conservative methodology, but arrives at liberal results, as “liberal” is understood in the classic sense of seventeenth- and eighteenth- century Lockean political philosophy. “To secure these rights,” Thomas Jefferson proclaims in the Declaration of Independence, is the reason that “governments are instituted among men.” To secure unalienable rights is, therefore, why the Constitution was enacted, and to secure unalienable rights is how the Constitution should be interpreted. That is the “original intent” of the Founders.

Here, it is necessary to explain the connection between the Founders’ background attitudes on the purpose of government and the interpretation of the particular provisions of the Constitution. The most important point to recognize is that, as just mentioned, the Constitution was written for a reason: to establish a form of government that would provide better security for unalienable rights than was provided under the Articles of Confederation, the nation’s first constitution. To make the point somewhat differently, the particular provisions of the Constitution were written with the Founders’ background attitudes in mind. The Constitution is not an end in itself; it is the means by which the American political community’s ideals—its ends—are ordered. It is therefore necessary to interpret the Constitution in light of those ideals; ideals expressed with unparalleled eloquence by Thomas Jefferson in the Declaration of Independence.

The necessity of keeping the Founders’ background attitudes in mind when interpreting the particular provisions of the Constitution becomes even more apparent when one realizes that many of the most significant provisions of the Constitution are phrased in general terms, especially those concerning individual rights. For example, the First Amendment’s directive that Congress shall make no law “abridging the freedom of speech” is not unambiguous, nor is the Eighth Amendment’s prohibition against “cruel and unusual punishments.” Moving beyond

the original ten amendments, what does it mean to say, as the Fourteenth Amendment does, that no state shall deny to any person “the equal protection of the laws”? Provisions as general as these—and there are many others in the Constitution—are not self-interpreting. They can be given meaning and life only when they are construed in light of the moral and political principles upon which they are based.

Of course, it is possible to construe the provisions of the Constitution in light of philosophical principles other than those embodied in the Declaration of Independence. One need only peruse the plethora of provocative theories of constitutional interpretation advanced over the years to appreciate this fact. However, those advancing non-originalist approaches to constitutional interpretation have failed to show that the particular approach they favor is based on anything other than their own moral and political preferences. Indeed, the late legal philosopher Ronald Dworkin, a forceful critic of originalism, maintained that we should abandon the search—hopeless, in his view—for the Framers’ intent in favor of the “best argument” about political morality.

The problem with Dworkin’s interpretive position, and a problem repeated by most lawyers attempting to articulate theories of constitutional interpretation, is that under his theory substantive values are inevitably established by those with the best argumentation skills—by clever lawyers like Dworkin himself. If the rule of law means anything, it surely means that the Constitution should not be interpreted in such a subjective fashion, especially by unelected and life-tenured judges. Moreover, if the American people do wish to depart from the political philosophy of the Declaration of Independence and adopt, for instance, the progressive agenda preferred by most American law professors or the majoritarianism of the vast majority of conservative originalists, they should employ the Article V amendment process and so specify. To date, this has not occurred—and it is not likely to occur as long as the American people continue to celebrate the Fourth of July with pride and passion.

Scott Douglas Gerber is a visiting professor of political theory at Brown University and a law professor at Ohio Northern University. His eight books include “To Secure These Rights: The Declaration of Independence and Constitutional Interpretation” (NYU Press).


The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.

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