Against a Flight 93 Jurisprudence

In the introduction to The Tempting of America, Robert Bork remarked on how disconcerting it was to see abortion protesters at their annual marches to the Supreme Court: “The demonstrators on both sides believe the issue to be moral, not legal. So far as they are concerned, however, the primary political branch of government, to which they must address their petitions, is the Supreme Court.” On the most pressing moral questions of the day, the citizens of the world’s greatest republic are marching to a court and imploring a council of elders to see justice their way.

The latest broadside against originalism from the right urges us to embrace this idea of judges as moral arbiters. Four prominent conservative voices—Hadley Arkes, Josh Hammer, Matthew Peterson, and Garrett Snedeker—argue that the “ruinous depths of the status quo” mean that a jurisprudence that does not deliver substantive conservative victories is untenable as we “are about to plunge into the gravest crisis of the regime since the Civil War.” Conservatives must, therefore, abandon their old “proceduralist bromides” about judges interpreting law rather than enforcing morality. The great crisis of the regime demands moral statesmanship from the bench.

Judges must, therefore, transcend the words of the Constitution, addressing the “moral substance” of the issues, “test[ing] the underlying moral justification for why a law exists,” and deciding cases on the basis of the “first principles” and “natural law” understandings that supposedly undergirded the “project” of the “common good-centric” American founding. On such a moral basis, it is suggested, judges may establish rights not specifically mentioned in the constitution and empower Congress to legislate on matters not specifically authorized. The authors propose, essentially, a conservative version of the “moral reasoning” interpretive approach long advocated by the left.

The prescription, however, rests on a skewed understanding of what the Constitution is. And this misunderstanding results from a broader rejection of a core principle of conservative constitutionalism: a mistrust of the human ability to clearly perceive and pursue the good when armed with unchecked authority.

The evident decay of the American republic the authors lament ought to prompt a renewed zeal for the recovery of constitutional limits, not a grasp for the levers of judicial power.

What is the Constitution?

A theme that permeates the essay is a distinction between “procedure” and “substance.” These are not well defined, but one can discern that by “procedure” they mean the established institutions and legal processes through which political power is channeled, and by “substance” they mean actual policies and outcomes, especially their deeper moral purposes.

The authors contend that their conservative moral-reasoning approach is compatible with a search for original meaning (it is “A Better Originalism”) because the American founding was defined by a unifying set of underlying moral principles: “[The originalist] fixation on procedure ignores the fact that the whole project of the American Founding was directed to substantive ends.” They cite the Preamble’s language of “justice” and “the general welfare” as evidence. Such language alludes to an understanding of natural law and ultimate human goods on which the founding was built.

In a largely meaningless sense, this assessment might be true—no one (including originalists) is committed to process simply for process’s own sake, but in order to accomplish some human good. But were the various founding developments really driven by a focus on specific substance more than the establishment of proper procedures?

The Revolution was sparked not by any philosophic disagreement about the good society, but by a question that can only be described as procedural: Which institution rightfully possessed certain legislative authority? The Declaration of Independence does include metaphysical claims about the good society, though ones mostly focused on what a government should not do in pursuit of the common good. Moreover, the Declaration’s list of complaints is a roughly equal combination of substantive and procedural concerns. And we should not forget that the King and Parliament quite adamantly believed that their measures were in pursuit of the common good. To use the authors’ words, they were “able, willing, and eager to exercise political power in the service of good political order.”         

The Constitution situated a limited, divided authority to pursue the public good within structures and procedures that promote restraint, thoughtful deliberation, and consensus-building in that pursuit.

The Articles of Confederation primarily outlined the heavily limited authority of the central government and established the legal relationship between states. To this point, then, if we are looking for a defining spirit of a unified, logically coherent “founding” (a search I would typically advise against), it would appear to be the evil of arbitrary government and the necessity of procedural restraints upon it.

Is the Constitution any different? The authors speak as if it was meant to be a comprehensive statement of the ethical foundations of government—they assume the written constitution of our political institutions must contain the unwritten constitution of our society more broadly. So we must read a certain morally anchored telos into it, since the drafters left such foundational principles unstated.

In the constitutional convention, one can see general agreement on the necessity of a somewhat more powerful national government to meet the needs of society, but that recognition was paired with the understanding that with such an expansion, the necessity of legal limits and checks became even more pressing. So up and down the seven Articles, we find structure, process, and limits. Where is authority vested? What are its limits? How is it contained and checked? How can such authority be altered should the needs of society require it? The moral underpinnings of the use of power are not to be found.

The language of the Preamble is hardly evidence of an unstated moral purpose which reveals a higher meaning of the text. The Articles of Confederation also listed “common defense, the security of their [the states’] liberties, and their mutual and general welfare” as its purpose. No one would plausibly infer from such language, however, that the Confederation Congress was thereby empowered to vaguely pursue such aims. Neither did the ends stated in the Constitution’s Preamble grant any authority to act on them outside of the more limited measures described in the document’s body. These were merely the general objectives at which all political systems, taken in their entirety, aim.

This is confirmed by the convention’s Committee of Detail’s Report, drafted by Edmund Randolph:

A preamble seems proper not for the purpose of designating the ends of government and human polities. . . . But the object of our preamble ought to be briefly to declare, that the present foederal government is insufficient to the general happiness, that the conviction of this fact gave birth to this convention; and that the only effectual mode which they can devise, for curing this insufficiency, is the establishment of a supreme legislative executive and judiciary (emphasis added).

The drafters, in other words, were not establishing a particular vision of public happiness, but establishing the institutions and processes by which it could be better pursued. The actual text of the Preamble was drafted in the Committee of Style, which left no notes, and there was no recorded debate on its language—a silence that would be shocking if any of the delegates thought the passage infused a great moral telos into the document.

Randolph’s language confirms Russell Kirk’s observation that the Constitution “is not a philosophical treatise” and Antonin Scalia’s description of it as “a practical and pragmatic charter of government.” No one at the time of ratification thought that underlying moral principles gave it its legal meaning. Even the nationalist Hamilton, who seems to be the authors’ beau ideal of a statesman, recognized the limited purpose of the document: The long lists of substantive rights often included in state governments, he observed, “would sound much better in a treatise of ethics than in a constitution of government” in which “We the people” have given up only those powers specifically delegated. Such substantive statements, he went on, would give the false impression that the federal government otherwise possessed authority over “every species of personal and private concerns” on which its text was silent.

Another Hamiltonian example of the Constitution’s limited scope is inadvertently highlighted by the authors’ discussion of Federalist 33, wherein, they tell us, Hamilton argues that the power to do “all things ‘necessary and proper’ to the rightful ends of the government would be valid even if it were never set down in Article I, Section 8.” This reminds us, they say, of “the ineffaceable understanding that there must be moral ends of the political order.” Not only is this not the argument of Federalist 33, the essay actually points precisely to the words of the constitution’s text.

The Necessary and Proper Clause does not speak broadly of “the rightful ends of the government” on which the authors elaborate, but of “the foregoing [enumerated] powers” of Congress. And Hamilton’s argument is based entirely on this positive grant of authority. Using taxation as an example, he asks,

What does the [the Necessary and Proper Clause] do more than declare the same truth, to wit, that the national legislature, to whom the power of laying and collecting taxes had been previously given, might, in the execution of that power, pass all laws NECESSARY and PROPER to carry it into effect? . . .  And it is EXPRESSLY to execute these powers that the sweeping clause . . .  authorizes the national legislature to pass all NECESSARY and PROPER laws. If there is any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated. (emphasis added).

It was not the public good, but specific constitutional text that authorized even the “implied” powers.

The Constitution, in this view, did not enshrine ethical principles, but rather established political institutions and delineated how and to what extent ethical principles could be advanced within them by way of political deliberation—not judicial imposition.

The drafters and ratifiers of the Constitution, of course, assumed (or at least hoped) that statesmen would “promote the general welfare” in carrying out their duties, and they would have had the public good in mind when they chose the institutions they did. But the point of the Constitution was not to legally establish any conception of the public good; it was to channel and limit its pursuit. The Constitution situated a limited, divided authority to pursue the public good within structures and procedures that promote restraint, thoughtful deliberation, and consensus-building in that pursuit. It neither answers nor empowers judges to answer the great moral questions of public life for us.

“Moral Timidity” and Conservative Constitutionalism

In dismissing the limited nature of the American Constitution, the authors would pull fundamental law down into the realm of ordinary politics and make it a moral battleground. What distinguishes the combatants is simply that some are tapped into the true font of natural morality and others are peddling false wares.

They claim that those who see the Constitution differently—as a fundamentally limiting document—are motivated by radical libertarian ideology: “The pursuit of limited government and its structural corollaries—federalism and the separation of powers” are championed “in obeisance to economic liberalism and Randian conceptions of maximizing individual liberty.”

These may motivate some originalists, but there are much better reasons to be faithful to the firm limits of constitutional text. The conservative tradition has long held that the pursuit of metaphysical purity—the quest for a regime perfectly in accord with natural morality—leads down the path of totalitarianism because the conservative recognizes the limits of human ability to perceive and pursue moral ends, especially when vested with considerable power.

Burke captured this hesitancy when he warned of “a mind which has no Restraint from a Sense of its own Weakness,” and in describing the characteristics of reforming statesmen as including “a politic caution, a guarded circumspection, a moral rather than a complexional timidity.” In an American judicial context, Bork struck the same note in observing that “Judges, like the rest of us, are apt to confuse their strongly held beliefs with the order of nature.” This recognition of human limits is central to the case for conservative constitutionalism, and it has nothing to do with unleashing “Randian individual liberty.”

In a recent essay in Modern Age, Jeff Polet drew attention to a puzzling line from Federalist #51: “Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit” (emphasis added).

We don’t usually think of liberty being lost in the pursuit of justice. But, as Polet explains, the constitutional framers were aware of how the substantive pursuit of “justice” or “the common good” could easily go awry when not constrained by institutional structure and procedure: “With regard to justice . . . opportunities for foolishness abound, and given justice’s relationship to coercive authority the consequences of mistakes going uncorrected can be severe. For that reason, concrete experience and humility are better guides to justice than are abstract principles with their sheen of certainty.”

Given their rejection of the kind of “moral timidity” Burke recommended, it is not surprising to observe that originalism’s critics are willing to walk a razor’s edge between the best regime and “tyranny.”

Just how far this new proposed jurisprudence is from the caution of conservatism is captured by the authors’ appeal to an originalist “construction zone” as a further way to integrate their moral reasoning into a framework of original meaning. This concept, a distinctive innovation of the very “new originalists” that the authors believe have utterly lost their way, is not without significant problems. But good faith conceptions of construction must seek to clarify the inevitable indeterminacies of language, such as those Madison outlined in Federalist 37. These ought to be rooted in a recognition of intellectual limits, as Madison describes: “the obscurity arising from the complexity of objects,” “the imperfection of the human faculties,” and “the medium through which the conceptions of man are conveyed to each other.”

But a construction zone cannot authorize the importation by judges of moral content concerning specific matters, such as abortion and marriage, on which the Constitution is not indeterminate but utterly silent. The authors’ use of the concept would depend not on our inabilities to discern the precise meaning of words, but on the belief that we can actually understand the document’s moral purposes better than the drafters themselves articulated them.

In stating the urgency of their case, the authors inadvertently reveal the consequences of abandoning this kind of conservative constitutionalism.

If “conservative” judges refuse to adopt the sound and traditional jurisprudence outlined above, they effectively cede this role to their peers on the Left. And those colleagues have demonstrated for decades, across the generations, that they have no problem in defining law in terms of moral purpose and the common good as they are pleased to define it. This is a form of tyranny that cannot be countered or tamed if conservatives disarm themselves and forego the discipline of moral reasoning that must ever be a part of judging (emphasis in original).

Given their rejection of the kind of “moral timidity” Burke recommended, it is not surprising to observe that originalism’s critics are willing to walk a razor’s edge between the best regime and “tyranny.” For the use of their own methods, the authors acknowledge, amounts to tyranny when it arrives at incorrect outcomes. One of the great benefits of constitutionalism is precisely that it helps prevent the misguided pursuit of the good from devolving into tyranny.

We are to have a regime that empowers the wise and philosophic—those who have access to the highest understanding of the human good. And if those with such authority fail to understand it accurately, fail to apply it properly, or fail to see the unintended consequences of their pursuit, we are left with tyranny.

Flight 93 Jurisprudence

On the surface, the authors are quite adamant that what they describe is a more genuinely conservative constitutionalism. Yet they hint that this might not be what we typically think of as constitutionalism by linking to an article by Hammer in which he declares that the question for the future is “how best to deliberate in pursuit of justice in a post-constitutional age.” That more accurately describes the project to displace originalism.

They also acknowledge that their proposals are not particularly conservative. The real reason we must adopt such a combative approach is that we need a revolution: “Perhaps ‘conservative’ is no longer the right word to describe how such a political effort must operate at a time in which a corrupt, desiccated liberalism is the true ‘norm,’” they concede. “But this is a problem of semantics. The word now suffers from the fact that so-called conservatives have failed to conserve anything meaningful.”

This last claim shows why the conservative label is not simply a problem of semantics. Burke cautioned against “pulling down an edifice, which has answered in any tolerable degree for ages the common purposes of society.” Originalism’s critics, though, look not to the tolerable but to the ideal, and seem disinclined to work within the unfortunate realities of life in the 21st-century West to preserve the valuable things that remain and plant the seeds of long-term cultural renewal. Our only option is a last, desperate grasp for the levers of power.

Such critics can be forgiven for their pessimism, but if they truly believe that the conservative legal movement has conserved nothing meaningful, or that there is nothing left that our constitution as written can yet conserve, imagination may be lacking.

In 2016, an argument on similarly apocalyptic premises was made that the conservative principles of restraint, civility, and consistency were preventing them from “fighting back” against the forces that were destroying the republic. After taking the advice of the “Flight 93 Election” and pinning their hopes on Donald Trump, conservatives are even more scattered and overwhelmed than they were five years ago. And they are morally compromised after years of exchanging principle for advantage. The argument for a Flight 93 jurisprudence may have a nobler ambition and a slightly more plausible savior, but it will take the same flight path.