Nonoriginalism does not necessarily protect rights better than the alternatives: Amanda Tyler's new book on habeas corpus in wartime offers a corrective.
Jesse Merriam has written a bracing, well-argued, and contrarian Liberty Forum essay, contending that conservatives should not celebrate the rise of the legal Right. Merriam’s complaint is that the Right is not synonymous with conservatism and, further, that the modern conservative legal movement is not really conservative, but libertarian. For him, the focus on original meaning is a mistake anyway, preventing the development of what conservatives really need: a jurisprudence rooted in “constitutional morality.”
I fear that I am in substantial disagreement with every claim. First, while it is true that the conservative legal movement includes many libertarians as well as conservatives, enforcing the Constitution as written is the only practical way to advance conservatism through constitutional law. Second, while any legal theory can be applied wrongly, originalism (particularly in the hands of originalist judges as opposed to academics who sometimes put a higher premium on creativity than soundness) advances conservatism because the Constitution itself is fusionist document that aids conservatism. Finally, Merriam does not identify any possible theory that would deliver better results than those delivered by originalism. And that is not a surprise, for originalism has distinctively conservative virtues that other interpretive theories do not. It is traditional, being in fact the universally accepted interpretative theory until the Progressive Era. Only in name is it new. And following the meaning of the Constitution’s text coincides with the common sense of the people, another conservative virtue.
The Endurance of Fusionism
Let me begin with a defense of fusionism, which Merriam dismisses as an accident of history. It is not true that conservatives and libertarians just happened to get together in America because of the peculiar circumstances of the country after the close of the Second World War. Fusionism represents a more enduring alliance. While conservatives and libertarians do not agree on everything, they agree on the two great things that shape modern domestic politics: support for personal responsibility and skepticism about social engineering. Libertarians take personal responsibility as an axiom of their political creed; conservatives find it in tradition and religious faith, but the overlapping consensus is substantial. Libertarians do not like social engineering because it endangers rights; conservatives mainly dislike it out of distrust of the exercise of federal authority by a secular and centralized state. But they both oppose big government as a result.
Fusionism has resonance throughout the West. The Christian conservative parties of Europe prefer alliances with liberals (classical liberals in the American sense) rather with socialists or the Green Party.
To be sure, the common focus on anticommunism has waned in the wake of the demise of the Soviet Union. But agreement on foreign policy is less necessary as a foundation for agreement on a jurisprudence. Even at its most activist, the Supreme Court has not had an independent foreign policy.
Contrary to Merriam’s argument, Election 2016 did not herald the death of fusionism, as least as to domestic policy. President Trump has followed a classically liberal policy of deregulation and tax-reduction even as he has resolutely opposed abortion and pursued America First. Indeed, he has pursued deregulation and corporate tax-reduction far more vigorously than did either of the Presidents Bush. (And deregulation helps conservatives, for instance, in lessening conflicts between the administrative state and religious dissenters.)
Moreover, it is particularly problematic for Merriam’s thesis that Trump himself has been the most avid of any GOP President in advancing the legal movement on the Right that Merriam dismisses. Indeed, the Left is decrying the Trump nominees precisely because they seem to be advancing the long-sought objectives of the movement. Here, above all, Trump represents the continuity of fusion, not “fission.”
The Fusionism of the 1787 Document
The American Constitution is a fusionist document. Of course, I do not mean that the Framers were disciples of Frank Meyer; but they put into a place a governmental structure that respects both tradition and liberty. Broadly speaking, the federal government creates a commercial republic but the states, should they so choose, can be repositories of traditional morality. Thus, the federal government is given only enumerated powers and the most important domestic ones (like the Commerce Clause and the Bankruptcy Clause) provide the authority to create and protect continental commerce. The states are disabled from interfering with commerce in various ways, such as by providing debtor relief. Libertarians celebrate the freedom that a commercial society brings, while conservatives appreciate its important virtues such as prudence, thrift, and the market’s focus on the needs of others.
To be sure, commercial virtues are not the sum total of virtue. But in the original Constitution, the states are free to enact their own laws under the police powers, which include laws enacted for moral purposes. Thus, they have almost plenary power to protect traditions and promote other virtues so long as they do not have the purpose of disturbing the commercial interstate republic. But the potential oppression that this ample state power provides is tempered by the ability of individuals to move from one state to another and not be discriminated against in the new states in which they settle.
In my view, the Reconstruction Amendments do not fundamentally change the Constitution’s fusionist character even as they eliminated the original sin of the original Constitution: its failure to abolish slavery. Even if the Fourteenth Amendment incorporates the Bill of Rights, these rights are consistent with the ability of states to preserve conservative values.
Indeed, one of the most important premises of a conservative civil order is protection of mediating institutions, like churches and mutual aid societies. It is these mediating institutions that are best at handing down traditions from generation to generation. The Constitution’s special protection for religious exercise and freedom of association facilitates these institutions. These institutions can produce better and more diverse public goods than can a more centralized state. That is another point of enduring agreement between conservatives and libertarians. Both believe that, in comparison to such private organizations, the government is bereft of local knowledge and subject to the substantial influence of narrow interest groups.
If the Constitution is a fusionist document that facilitates the promotion of conservative values, the modern legal movement on the Right is of enormous value to conservatives, because its essential thrust is to promote interpreting the Constitution as written. When Merriam complains that the Federalist Society does not use the adjective “conservative,” he fails to recognize the disarming indirection of the Constitution’s method of achieving conservative results.
The Value of a More Originalist Court
One way of refuting Merriam’s thesis that there is essentially nothing to celebrate about the legal conservative movement is to imagine a Supreme Court without it. In the 1950s and 1960s, the Warren Court set a trajectory of replacing the Constitution as written with a set of moral principles that justices thought good for America. They were on a mission to replace the states as forums for drawing the line between liberty and license. And there was really no substantial opposition at the time—not on the Supreme Court, and not in the legal academy.
Justice John Marshall Harlan’s opinions today read not like a principled opposition, only a plea to his colleagues to slow down. And even the Court under Chief Justice Warren Burger had no jurisprudence of constitutionalism worthy of the name. Roe v. Wade was, as John Hart Ely stated, “not constitutional law” and “showed no sense of an obligation to be so.” And even the dissents of Justices Byron White and William Rehnquist to that dreadful decision were perfunctory. They had nothing of the power of Justice Antonin Scalia’s opinion in Casey or Chief Justice Roberts’s in Obergefell.
Now Merriam could legitimately note that even if the Roberts Court is a big improvement over the Warren and Burger Courts, it is not yet all that conservatives would want. That, however, is a result of the constraints of personnel and precedent. These constraints will become weaker with time, particularly if President Trump gains another term.
Until this term, we did not have a majority of justices who grew up in the Right’s legal movement in law. Only now are there four justices who were appointed with both a Republican President and Senate and thus are solid members of the movement. (Thomas barely scraped through a Democratic Senate).
Until recently, the swing vote was Justice Anthony Kennedy (the kind of figure on the Right to whom Merriam rightly objects), who read his libertarian views into the Constitution. But today, the five-justice majority will not further rev up the engine of substantive due process—the doctrine that more than any other has been used to erode traditional values by judicial fiat. Without the rightward movement in law, substantive due process would have become an engine for creating more new rights: the right to assisted suicide, the right to take drugs in private, perhaps even the right to clone yourself.
Note that the Court even with Justice Kennedy advanced a more robust understanding of free exercise in Trinity Lutheran, and appears poised to strike down the Blaine Amendments that require discrimination against religious institutions in government funding. The Blaine Amendments, incidentally, were part of the populism of their day and should remind conservatives that populism is no substitute for constitutionalism in advancing the key conservative value of protecting mediating institutions (including churches) from government intrusion.
The other constraint on the Court is precedent. Precedent poses something of a dilemma for conservatives. Conservative non-libertarian scholars, like Columbia law professor Tom Merrill, have argued that a strong respect for precedent honors values of Burkean conservatism’s respect for tradition and the rule of law. In any event, originalists have not yet fully grappled with the relation between erroneous precedent and originalism. That failure is not surprising, because that issue has only come to the fore when a majority of the Court has some originalist sympathies, making many non-originalist precedents ripe for consideration. But the relation of originalism and precedent is now one of the most important aspects of originalist scholarship and it is likely that this constraint will also be weakened.
Originalism as the Best Conservative Jurisprudence
Merriam worries that originalism has crowded out a better conservative constitutional jurisprudence. He does not provide many specifics about what this jurisprudence would resemble, and I am skeptical that any philosophy will serve conservatism as well as originalism does. As noted above, the Constitution as written serves broadly fusionist values compatible with a Burkean conservatism that renews itself through being put under pressure to change to meet contemporary social realities. And unlike other jurisprudence, originalism is a traditional jurisprudence. As Mike Rappaport and I have shown, the Founders were originalists. They believed that the meaning of the Constitution was to be found in its words as interpreted according to the legal interpretive rules that were applied at the time. A jurisprudence that courts have employed since the beginning of the republic to the Progressive Era is not only conservative, but more likely to succeed than a new conservative brand.
What is more, originalism reflects a commonsense way of interpreting the Constitution. One of the most striking confirmations of this truth is that, when law professors go before Congress to testify on the constitutional aspects of some great public issue, like impeachment or the North American Free Trade Agreement, they drop whatever is their peculiar idiom of constitutional interpretation and talk as originalists. Originalism’s public resonance makes it evergreen.
In short, the Right’s movement in law has accomplished a lot so far and, with Trump’s new appointees, is poised to accomplish even more in the future by restoring a broadly fusionist Constitution. Breaking with the movement to tout a new and untested theory of jurisprudence is the way for conservatives to exile themselves to the wilderness rather than return from exile a more conservative-friendly Constitution.