fbpx

Can Modern Originalism Save American Constitutionalism?

The politics of the modern West has been created by two very different revolutions—the American and the French. One of the important differences between the two is their conflicting concepts of a constitution. In his last book, Conservatism: An Invitation to the Great Tradition, the late great philosopher Sir Roger Scruton observed that the American Constitution, in its model for both structure and rights, “was designed to guarantee to the people what they had once enjoyed. It was the recipe for an already established practice rather than a recipe for a new order of things.” Scruton noted, for instance, that the rights provided in the American Constitution had been previously defined at common law. In contrast, the French Declaration of Rights was a product of philosophical reflection, an attempt “to transcribe into politics ideas that had previously no overt presence there and which owed . . . much to the abstract arguments of philosophers.”

The struggle over the interpretation of the United States Constitution is profitably understood as a debate over whether the United States should retain a constitution whose meaning was fixed by reference to established practices that animated the American Revolution or whether it should be changed into a constitution more closely resembling the French Declaration of Rights.

One of the distinctive features of living constitutionalism has been its abstraction of rights. Substantive due process, for instance, has on this view become a fount of undefined, fundamental rights. And what constitutes “fundamental” is a heavily philosophic question whose content is influenced by the intellectuals of the day.

To be sure, the Supreme Court justices have on occasion attempted to cabin the doctrine by appeal to established practice. For instance, according to Washington v. Glucksberg, the case rejecting a right to assisted suicide, substantive due process rights are only those that are “deeply rooted” in American traditions. But despite this verbiage, the Court has declared abortion and same-sex marriage to be fundamental rights. These rights are not “deeply rooted.” Like almost any practice, they might be considered a right derived from “liberty,” but only at an extremely high level of abstraction and only if that abstract liberty is given the appropriate ideological spin. As constitutional rights, they are modern inventions.

The modern originalist movement has the potential to restore the kind of constitution grounded in the American revolutionary experience. But its success depends on what version of originalism is employed. Some theories of originalism are very compatible with what Scruton identifies as the French version of constitutionalism. Jack Balkin, for instance, suggests that all that is binding on interpreters is the thin linguistic meaning of the Constitution, shorn of context, except as necessary to eliminate linguistic ambiguity. Thus, for Balkin, Article IV’s “domestic violence” cannot mean violence against a member of a household, but we are otherwise mostly free from original constitutional concepts. As a result, under Balkin’s originalism, rights in the Constitution become abstractions without roots in the concrete practices from the time they were enacted. They are given content in any era by social movements which generally move under some philosophical or ideological banner. It is a constitution that would be appreciated by the French revolutionaries.

But even the most mainstream academic theory of Originalism—the New Originalism—can tend in the direction against which Scruton warned. The New Originalism agrees that some parts of the Constitution have determinate meaning. But it accepts that other parts—perhaps major parts—are not clear and thus need to be constructed, not interpreted. That construction can include reading the enumerated rights at high levels of generality or purpose—so high that, again, they no longer reflect the established practice, but some grander philosophy. Using such methods, some modern originalists have found a right to same-sex marriage in the Constitution or discovered that the Fourteenth Amendment protects against sex discrimination (despite the absence of a clause in that Amendment recognizing such discrimination).

The Successor Ideology is not going to stay on campus but will soon be pushing for its ideas to be impressed in constitutional law.

Scruton’s dichotomy between the way the Anglo-American tradition and the French tradition conceive of and enforce constitutional rights and structures makes it easy to understand the growing disquiet of some conservatives with modern academic originalism. Nothing so unites traditional conservatives as horror of the French revolution and its methods! To the extent that modern originalism permits rights to become abstractions and the playthings of the modern equivalent of the French philosophes, it a method of interpretation that the heirs of Edmund Burke, the great critic of the French Revolution, must reject.

That is not to say these conservatives are necessarily apostles of the so-called “common-good” conservatism that Adrian Vermeule is pushing. They have imbibed enough of the skepticism of government—also an important part of the Anglo-American tradition—to be suspicious of cloaking the government with the power to do what it labels the common good.

Nor can the debate between the Anglo-American tradition and the French tradition be captured by the debate between judicial restraint and judicial engagement. Many conservatives have no objection to vigorously enforcing the textually defined rights in the Constitution as understood in the context of the specific practices. What they object to is making these rights into abstractions shorn of that context.

Some conservative critics of modern originalism are reactionaries, opposed to all change. But there is a method for fundamental constitutional change in the Constitution: the amendment process. It requires a continental consensus forged by legislators, both state and federal, elected by citizens. Conservatives are much more comfortable with such a socially rooted method of constitutional norm-production than that generated by nine justices, drawn largely from a narrow circle of the elite educational establishment. 

The brand of originalism that best captures early America is Mike Rappaport’s and my original methods originalism. By stressing that the Constitution is a legal document with more precise meaning to words and phrases than given in ordinary speech and with legal methods for resolving ambiguity and vagueness, it offers a riposte to the abstractions that so concern conservatives. It is a “recipe,” to paraphrase Scruton, that grows out of “established practice.” It embeds the Constitution in the Anglo-American tradition and militates against the abstractions of the French philosophes. It ensures that constitutional change will come through slow and deliberate social reform of the kind celebrated by Burke and generated by our demanding amendment process.

The fundamental conflict between the traditions of constitutionalism that Scruton describes has never been more relevant than now, when a new band of anti-liberal philosophes is threatening to dominate our intellectual life. The new ideology on campus, sometimes called the Successor Ideology, is self-consciously post-liberal. It wants to replace the market meritocracy enabled by our amended Constitution of limited government and individual rights with an anti-capitalist identity politics. This social movement is not going to stay on campus but will soon be pushing for its ideas to be impressed in constitutional law. Interpreting the Constitution as a set of abstractions, as did the French revolutionaries and their American living constitutionalist successors, opens a channel for infusing this new ideology into our venerable charter of government. In contrast, originalism correctly conceived anchors the tradition of constitutionalism and provides the most effective protection against this latest enthusiasm of the intellectual class.  

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on September 10, 2020 at 10:59:33 am

“The politics of the modern West has been created by two very different revolutions—the American and the French.”

What is ailing the “modern West”, is that same philosophy which is ailing a multitude of Baptized Catholics who no longer recognize that Faith informs Reason, and that when Faith no longer informs Reason, Faith becomes faithless.

One only needs to compare and contrast these two statements, one that affirms The Unity Of The Holy Ghost, and thus the fact that “it is not possible to have Sacramental Communion without Ecclesial Communion”, due to The Unity Of The Holy Ghost, and one that denies The Unity Of The Holy Ghost, thus making it appear that it is possible to have Sacramental Communion without Ecclesial Communion, and that Reason need not be informed by Faith.

“When the freedom to be creative becomes the freedom to create oneself, then necessarily the Maker himself is denied and ultimately man too is stripped of his dignity as a creature of God, as the image of God at the core of his being. The defence of the family is about man himself. And it becomes clear that when God is denied, human dignity also disappears. Whoever defends God is defending man.”

Pope Benedict’s Christmas Address 2012

“If there is a union of a private nature, there is neither a third party, nor is society affected. Now, if the union is given the category of marriage, there could be children affected. Every person needs a male father and a female mother that can help shape their identity.”

-Jorge Bergoglio, denying The Sanctity of the marital act within The Sacrament of Holy Matrimony, and the fact that God, The Most Holy And Undivided Blessed Trinity, Through The Unity Of The Holy Ghost, Is The Author Of Love, Of Life, And Of Marriage, while denying sin done in private is sin.”

“Catechism Of The Catholic Church : 1849 Sin is an offense against reason, truth, and right conscience; it is failure in genuine love for God and neighbor caused by a perverse attachment to certain goods. It wounds the nature of man and injures human solidarity. It has been defined as "an utterance, a deed, or a desire contrary to the eternal law.121”

For if it were true, that it is Merciful and Loving to desire that we, or our beloved, remain in our sin, and not desire to overcome our disordered inclinations, we would have no need for our Savior, Jesus The Christ.

Pray for the restoration of the Papacy and thus the affirmation of The Unity Of The Holy Ghost, while Praying that we continue to hold that our unalienable Right to Life, to Liberty, And To The Pursuit Of Happiness, can only be Endowed to us by The True God, and thus Held, “In The Name Of The Most Holy And Undivided Blessed Trinity”, while affirming that the purpose of our inherent unalienable Rights, can only be, what God Intended.

read full comment
Image of ND
ND
on September 10, 2020 at 11:04:56 am

Give credit where and when it is due. Good essay by McGinnis.
I am partial to his (and Rappaport's) original methods originalism as such an approach seeks to ground constitutional adjudication and evolution in "practice" not thesis. Nice contrast with, as Scruton argued, with the French rabble rousing philosophes.

Only one quibble: "... a new band of anti-liberal philosophes is threatening to dominate our intellectual life."

Is threatening??? Well, I suppose even those with tenure must be circumspect lest they be cancelled.
They ain't threatening. They OWN American intellectual life and perform a function not unlike that discharged by Ottoman educators when training a new crop of Janissaries.

read full comment
Image of gabe
gabe
on September 10, 2020 at 12:02:01 pm

There is some ambiguity with terms, suffice to say Balkin's kind of originalism and variants and derivatives and accommodations thereof are but tissues, no real and substantive kind of originalism at all to the extent they borrow from such abstracted inclinations - "originalism" in a titular sense only.

Original methods originalism is real, is substantive, is honest originalism.

But it has to be fought at philosophical, well reasoned levels and modes. As has been argued in this forum, natural law and natural rights need to be rehabilitated, reinstituted, but more basic problems are at issue as well, a priori vs a posteriori modes of reasoning, nominalism vs realism/universals are two areas of note. This is specialized stuff but w/o acknowledging and addressing it the underlying erosion, the undertow of a Balkin-effect will result in a Balkanized and dissolute originalism. Then again, our contemporary new band of anti-liberal philosophes, the new or successor ideologues, these are anti-rationalists, anti-realists, fideists of a certain kind - who seek to abort any discussion or debate before it has a chance to see the light of day. That's a fight as well, one that needs acknowledgement and backbone as well. It's late modern, post-modern, post-liberal Gordian Knot crapola - i.e. reflects the most cynical forms of political divisiveness and fighting. But that is what it is - we all know how Alexander the Great solved the problem of the Gordian Knot. Politics, cynical and brutal, vicious and venomous, insidious and pernicious politics in various modes is at the heart of this as well.

read full comment
Image of Michael Bond
Michael Bond
on September 11, 2020 at 11:50:10 am

"... the undertow of a Balkin-effect will result in a Balkanized and dissolute originalism." We see what you did there -- bravo!

As to your negative portrayal of politics, so true, yet there is also a version that is spirited, vigorous, uplifting, and sometimes even open and honest in its provision of solutions to social and economic problems. So, yes, a fight is coming and backbone is needed to recover some of that, but (via Churchill?) "jar jar is better than war war".

That is, until we get to the situation where the corollary to the Golden Rule applies: Do unto others as they have done unto you, ... until they stop.

read full comment
Image of R2L
R2L
on September 10, 2020 at 12:53:04 pm

I do appreciate receiving from McGinnis yet another of his succinct, well-written summaries of the virtues of originalism as rightly understood (by McGinnis and Rappaport.) Professor McGinnis has even added to today's lecture a specter of hope, that his brand of originalism might well save the nation from the NEW evil of "successor ideology." Exploring "successor ideology" would have been a worthy purpose, but McGinnis fails to discuss or even define this emerging existential threat.

Following McGinnis' link, however, I take "successor ideology" to mean our culture's mad slide toward bloody, morally-ungrounded moralizing that is empowered by psychotic projection, fueled by destructive self-righteousness and characterized by violent nihilism.

I think we are already there, that we embarked on the "successor ideology" journey in 1968 and that (as T.S. Eliot wrote) at the end of our travels we have at last arrived where we began and know the place for the first time.

However, we would surely love to read how originalism (rightly understood) might enable us to say goodbye to all that or, at least, to fend off "successor ideology," which is now upon us and at the nation's throat.

Yet, we receive nothing! I must ask: As our nation braces for the Revolutionary Democrat Party's seventh attempt at coup d'etat in the last 4 years, might readers hope for more from L&L than one professor's repetition of his original Restatement on Originalism?

read full comment
Image of paladin
paladin
on September 10, 2020 at 12:57:20 pm

https://www.religiousfreedominstitute.org/rfievents/more-rights-less-freedom-recent-supreme-court-cases-the-future-of-religious-freedom

For a closer look at modern “originalism” sans God, which, by denying The First Cause, denies First Principles, and thus is not, in essence, originalism from the start.

read full comment
Image of Nancy
Nancy
on September 10, 2020 at 16:13:27 pm

https://www.religiousfreedominstitute.org/rfievents/more-rights-less-freedom-recent-supreme-court-cases-the-future-of-religious-freedom

I hope there will be a re run so you can see what being a religious freedom warrior entails and why the freedom to come to know, Love, and serve The True God in this life, so that, hopefully, we can be with God and our beloved forever in Heaven is the first freedom.

God, The Most Holy And Undivided Blessed Trinity, Through The Unity Of The Holy Ghost, Is The Author Of Love, Of Life, And Of Marriage, but we get to choose our own destiny, due to The Integral Sacrifice Of The Cross, The Sacrament Of Life Affirming And Life Sustaining Salvational Love, Through The Unity Of The Holy Ghost, God’s Gift Of Grace And Mercy, Poured Out For All Who Desire to Repent and Believe In The Power And Glory Of Authentic Salvational Love.

read full comment
Image of Nancy
Nancy
on September 10, 2020 at 20:39:04 pm

Two issues. First: "... a debate over whether the United States should retain a constitution whose meaning was fixed by reference to established practices that animated the American Revolution or whether it should be changed into a constitution more closely resembling the French Declaration of Rights." Actually, those are not the only two choices. The American Revolution drew on principles before practices. Perhaps that's why the unwritten British constitution works. It is a set of commonly understood principles more than practices. The practices being only consequential.

Second: "But there is a method for fundamental constitutional change in the Constitution: the amendment process. It requires a continental consensus forged by legislators, both state and federal, elected by citizens." Actually, the process of change was corrupted at the very start. The political parties took over and they acted hand-in-hand with the very wealthy (which today includes large labor unions). Changes to the Constitution that reduce the power of either group are very hard to come by. Since so many problems of our government originate with the over-empowered parties and the wealthy, necessary changes cannot be made. The faith held by conservatives in an unworkable process of correction is misplaced. I find Mcginnis' thesis substantially weak on this point.

read full comment
Image of Scott Amorian
Scott Amorian
on September 11, 2020 at 12:11:21 pm

"Perhaps that's why the unwritten British constitution works." I agree that even our "self-evident" rights really come to us via a solid foundation in social consensus (norms, mores, practices), but the recent (and not so recent) history in Britain of the rights to free speech, bearing arms (even if only for self defense rather than resisting tyranny), possibly worship, petitioning for grievances, etc., suggest there is merit in actually writing them down to help ensure their survival. Similar concerns apply to some degree across the rest of the Anglo-sphere (CA, AU, NZ) as well. Part of American exceptionalism is that our creedal government was explicitly designed from the get-go. The fact that that design has since been so gravely bastardized is on us to correct. A COS may be the only way in the end (before or after CW 2.0).

Thank you for the comment about early corruption of the amendment process by the wealthy and elite - an idea that bears further thought (and detailed supporting examples/evidence beyond the scope of a blog comment*). The inherent and purposeful difficulty in amending the Constitution is why I also periodically propose that the Framers should have provided for a mandatory Convention of the States every 50 or 60 years, to help ensure that such road blocks as you mention can in fact be side stepped.

*Perhaps a suitable topic for a subsequent L&L essay?

read full comment
Image of R2L
R2L
on September 13, 2020 at 12:21:48 pm

R2L, I see the flaw in the British constitution too. It isn't written down, which provides flexibility, but it also leads to societal drift.

The US Constitution has a different problem, in that it states the details of the design but without clear principles. We are a nation of philosophers, running a nation without a clear and explicit philosophy of government.

I come from an engineering background, so to me the issues of US government are apparent to the point of being cliche. In any large and complex application you need about four levels of design. Without them your application, whether a building, a motor, a computer program, or a government, will have problems.

First, you need a statement of purpose of the application which includes who the stakeholders are and and who the users are. It should also include scope of the application.

Next, you need a statement of the operating principles of the application. This is the philosophy of the system.

Next, you need a the detailed design, which describes how the application should be constructed and how it should operate. This is your US Constitution.

Finally, you have the actual implementation.

Good applications have a clear and simple process for modifying not just the implementation and the detail design, but also its purpose and principles. Sometimes the scope needs enlarging or contracting. Sometimes the users change. Sometimes the operating principles change. Changes in one level are often driven by changes in another level.

Without the details of those levels clearly stated, applications drift. Stakeholder and users become dissatisfied. Expectations cannot be satisfied when expectation are vague. The application cannot be said to be useful when its uses are vague. The principles of operation are not fulfilled when the principles are vague. The system falls into disrepair when there is no efficient and controlled means of modifying the application. To a good engineer the problems of government are cliche, almost to the point of being completely uninteresting. We see and work with these problems every day.

A COS is unlikely because there is no central organization driving it. The COS is most appropriate for fixing problems with the Senate that prevent the Senate from doing its job, which is to update the Constitution when it isn't working right. When the Senate does its job, the COS becomes unnecessary. The states should not have to make any other kinds of changes to the Constitution. A COS requires a strong center to drive it. Most likely the sitting US President would sponsor and motivate the action, and the states would do the conventioning. But presidents are part of the same political system of wealth and party that corrupts the Senate so I'm not sure it can be repaired. An exceptional president is required.

read full comment
Image of Scott Amorian
Scott Amorian
on September 11, 2020 at 12:27:00 pm

"Interpreting the Constitution as a set of abstractions, as did the French revolutionaries and their American living constitutionalist successors, opens a channel for infusing this new ideology into our venerable charter of government." This is as frightening a statement as the essays cited earlier by Michael Gonzales and Michael Anton. I appears today's companion essay on disparate impact will explore this further.

read full comment
Image of R2L
R2L
on September 11, 2020 at 13:43:50 pm

Sorry: Mike Gonzalez -- with two "Z's".
And the DI essay was equally scary.

read full comment
Image of R2L
R2L
on September 11, 2020 at 17:56:40 pm

Fundamentalism, whether constitutional or religious, only adds to confusion. What the scriptures (or writings of the founding fathers) may have meant when language was differently used than it is now (for example, does "all men" exclude women and slaves?), and when social externalities were differently structured than it is now (would a child be better raised by quarrelling parents instead of the child being raised by a single parent?) is like a theological exercise with no end to it.

read full comment
Image of Curious
Curious

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.