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Hope & Change SCOTUS Style

29 Jun 2018

The professor in me, the one who teaches Constitutional Law, works hard to expose students to a range of thinking about our nation’s enduring governing document. Yes, I have my bias, but I try to make sure students read and understand both Scalia and Ginsburg, Thomas and Breyer.

At the same time, I think originalism is the better approach to the Constitution. Like any other method, it can fall victim to ideological excess. History, which is the hallmark of the originalist thinker, can lead to murky, arguable results. It can collapse into “pick your favorite framer,” or “find the framer (or primary source) that confirms your thinking” and run with it to a preferred outcome. Originalism has its own set of shortcomings, but it shines most brightly in comparison to its alternatives. Whether critical, post-critical, feminist, Marxist, dignity, or social justice (and yes, I am aware of how much overlap there is between such approaches), alternative methods put far too much power in questions that are theoretically external to the Constitution itself. “What is justice?” “How does this decision impact the marginalized?” “How does my choice impact human dignity?”

Those are noble and worthy questions to ask, and they should be at the forefront of the minds of legislators as they craft laws. But such questions, by their very nature, are open-ended meditations that, in the hands of a judge, could radically empower the state in pursuit of ends far removed from the notion of limited government. Like it or not, the very existence of our Constitution, as a written, frequently concrete and specific, supreme law assumes a limited government. As Madison says famously in The Federalist 51,


The Constitution is one of the dominant means by which the government must control itself. When the Constitution is merely clauses in the hands of an angry Justice, one bent toward ideological purity, government is certainly not limited, particularly since our judges are, by design, unelected and mostly unaccountable to political forces.

The mistake that most make when they consider the originalist enterprise is that it is conservative ideologically. If by conservative one means deferential to history, this is unquestionably true, but if ideas of small government, unfettered free markets, a disposition toward law enforcement, or even traditional morality define conservatism, originalism does not bend in those directions per se.

Originalism often yields a robust Fourth Amendment jurisprudence, broad free speech rights, a hands-off approach to most economic regulation, and mostly defers to governments utilizing police powers to protect health, safety, and welfare–especially at the state level. This, more than anything, empowers the people to rule through their elected officials in most matters. At the same time, originalism rigidly opposes the people when they seek to use those same officials to denigrate or minimize the rights of others.*

This leads to an interesting question: what would an originalist Court actually do? David French’s blog post touches on this question and it is worth reading, especially for those fearful that such a Court would turn the world upside down. By definition, the Court can only take cases that come before it, so it cannot go shopping for particular issues. Also, I would expect the Court to narrowly deal with most questions before it. In other words, a regulation on abortion at the state level would not necessitate overturning Roe. Also, I agree with French that the Court is unlikely to address same-sex marriage any time soon. That issue, like in the Masterpiece case, will probably be dealt with at the margins as conflicts arise.

One final thing for evangelicals to be sure they understand–even if the Court overturns Roe, that will not make abortion illegal. It will grant states the power to deal with abortion as a political issue. California would almost certainly allow abortion virtually on demand. Few originalists believe that “life” or “person” or “citizen” in the Constitution by definition applies to a fetus, or, if it could, such words were not normally understood to limit abortion or other behavior that might terminate a pregnancy.


*The rub, of course, is in how we define “rights.” This is one of the most divisive arguments between the originalists and their opponents. Typically, originalists take a textual approach to rights as defined by the Constitution. They are not much for “natural” rights that transcend the document (at least interpretively) or that are external to the document. In this sense, originalists are positivists as judges. This is where, for those interested, Thomas and Scalia parted ways. Scalia was an interpretive positivist, while Thomas is much more of a natural law thinker who seems to view some rights, that can be brought to bear against government, as outside the Constitution, grounded in natural law, especially as articulated in The Declaration.