Can Matthew Whitaker be named as Acting Attorney General when the Attorney General can only be appointed with the advice and consent of the Senate?
Originalism has gained wide acceptance, at least in the limited sense that most academics and judges feel constrained to signal respect for the original meaning and generalized intentions of the Constitution. Unfortunately, this “acceptance” has done little to slow the pace of judicial law making that undermines our constitutional order. The reason is not hard to find, though it has become so deeply ingrained in the legal profession as to generally escape examination: lawyers share the prejudice that law is the product of judicial will, such that judges have a duty to pursue (or impose) justice by making and re-making rather than finding law.
Alternative views among lawyers are hard to find. Few judges or academics today are willing to encounter elite derision by defending traditional natural law; few even are willing to risk such derision by defending Lon Fuller’s softer version of natural law, holding that law has an internal morality such that decrees that are self-contradictory, impossible to obey, continually changing, or secretly enacted cannot fairly be deemed “law,” no matter their pedigree. But these understandings lay at the heart of our constitutional order; they were shared almost universally by the founding generation and shaped the drafting and interpretation of the Constitution, as well as its Amendments and legal decisions, for generations—indeed up until quite recently, historically speaking.
And why should contemporary judges and academics be bound by “outmoded” understandings of law’s (or even the Constitution’s) nature and purposes? Because only such an understanding allows us to find the meaning and purpose of the law as written. Any other understanding conflicts with that of the men who wrote our fundamental law and so distorts the meaning and purpose of that law. It is a rejection of our constitutional tradition and, indeed, law itself.
Like all public officers, judges have a duty to uphold the structure and purposes of their office. They, like members of Congress, the President, and administrative officers, have lost sight of the constitutional morality obligating them to adhere to the limits of their constitutional function, lest the entire structure collapse. Checks and balances, counteracting ambitions, and the nature of law itself cannot survive, no matter how intricate or well-designed the structure, without a limited but widespread virtue of law-abidingness applied to those who serve under the law of the Constitution. Unfortunately, our understanding of this virtue, along with its bases in the requirements of limited self-government, has been lost in pursuit of “justice” defined in abstract terms hostile to historical, political, and judicial reality.
Not coincidentally, natural law remains an object of derision and/or manipulation. For some lawyers today natural law is simply a sham—nonsense used to cover policy preferences, best ignored by interpreters even though it was constantly invoked during most of our history. For others, natural law is a code of conduct dictating specific, logically derived laws and policy provisions. For still others, natural law equals natural rights, which, despite the vast wealth of evidence to the contrary, dictates radical individualism as a relentless goal of constitutional government.
Philip Hamburger gets us much closer to the truth when he points out that, during the founding era, “natural law typically was assumed to be the reasoning on the basis of which individuals adopted constitutions and a means by which the people could measure the adequacy of their constitutions.” As used by the people in public discourse this characterization seems indisputable. But we must look further, or deeper, for the grounds of proper constitutional interpretation.
The deep structure of constitutionalism in the United States lies in the traditions of common law and chartered rights brought over from England. It also lies in what I would call the natural law mind. This natural law mind embodies an understanding of our nature and natural goals that not so long ago was almost universally accepted in the United States and remains deeply powerful outside the halls of academe and of politicized justice.
Edmund Burke gave voice to that vision of natural law commonly accepted among those who thought about such things before the onslaught of abstractions unleashed by the French philosophes, and long afterwards in America. He pointed out that “All human laws are, properly speaking, only declaratory; they may alter the mode and application, but have no power over the substance of original justice.” As Russell Kirk noted, Burke enunciated “the doctrine of the jus naturale, the law of the universe, the creation of the Divine mind, of which the laws of man are only imperfect manifestations.” Meaningless abstractions? Today most think so for the simple reason that they have been trained to disdain such ideas’ grounds and content.
When, several decades ago, Kirk was approached to write his Roots of American Order, he at first demurred on the explicit grounds that “everyone knows that.” Today, the outline of history he provided in that work, setting forth the historical and cultural basis for American constitutionalism in Christianity, common law, and stoicism, is treated by those few legal academics who know of it like a natural history of the moon; it is a foreign world void of beings and motivations our elites recognize as living and capable of reason. That even “originalists” can find grounds to support a Supreme Court decision redefining marriage into an expression of one’s self-identity-of-the-moment is a sign of a profession unhinged from historical reality.
Lawyers today seek to find justice or rights and impose them through judicial decisions based in abstract principles they dredge up from bits of philosophy, from “social science,” and from a vaguely defined “public policy” bounded by little save prejudices favoring ill-defined notions of equality and power relations among courts. Historically, however, justice or right were understood in a more limited but relevant, constrained sense as the reasonable expectations of the parties to a given controversy. This is why common law judges saw themselves—accurately—as finding rather than making law.
Before our current era of judicial legislation, parties in court generally argued, not that the law was unjust and so should be overturned or reinterpreted against its clear meaning, but that it was on their side. Those specific words in the disputed contract actually qualified as a disclaimer (or didn’t); that defendant’s actions actually fit within the definition of self-defense and so did not constitute murder (or not). Disputes refined our understanding of what the law requires, rather than “making” law.
Sadly, most lawyers today seem to believe that they must make new law because the one they inherited was in fact fundamentally unjust. To “interpret” provisions of the Constitution themselves in a manner contrary to that given by the original lawgivers—including by divining abstract principles from specific provisions that in practice “trump” those provisions—is to assume the power to change, which is to say make, law. This contradicts the frame of government and so lacks the basic character of law. The result is not law but a kind of quasi-law—a decree from one with the power to enforce it that people cannot consistently follow, because, at base, it is contradictory, changing, or otherwise unpredictable. Put differently, an act of will by a court, substituting its own notion of what is right or equal (or more generally a “principle” of the Constitution) for the already-published law of the land, is just that, an act of will, not law. It is not reasonable to expect people to follow the changing decisions of courts as against the terms of the Constitution as they have reason to expect they will be applied. People may obey such decrees to the extent fear and other forces dictate. But the unquestioned confidence of the people on which the rule of law and liberty rely is increasingly diminished. And the propensity to obey will diminish accordingly.
The evils of the decision in Dred Scott v. Sandford extending the scope of slavery and degrading the status of African Americans should, but seldom do promote humility among lawyers. That decision violated the Constitution, the common law, and natural law itself as properly understood. For centuries it had been recognized that chattel slavery is a violation of natural law, such that it could only be supported by specific, statutory provisions, which themselves would be narrowly construed. Yet, in the name of property rights, public policy, and prejudice, the Supreme Court declared an entire class of human beings beneath the Constitution and the law of nature, to be treated as things rather than persons. We should expect no better from modern-day courts as they pursue the “justice” (or the “substance” of due process) unbound from the law of nature as embedded in constitutional text and tradition.
Many originalists claim legitimacy for judicial law-making in the indeterminacy of the Constitution’s text. Thus, for example, Randy Barnett asserts that “the Constitution includes…open-ended or abstract provisions, and thereby delegates discretion to judges.” Such a starting point fundamentally misconstrues the nature of law and especially of constitutionalism. To say that a term that is underdetermined is therefore left for judicial discretion is to misread the form of judging expected at the time of the Constitution’s drafting and ratification—and for many decades thereafter. The Framers, who sought to “bind down” judges with precedents and who were raised within a tradition that subjected colonial judges to legislative oversight (and threats of removal) were not proponents of wide judicial discretion. Indeed, exercise of such discretion by its nature violated longstanding, generally recognized standards of judicial duty.
The Constitution contains many provisions that are quite clear in their meaning and intent, of course. That the 8th Amendment’s prohibition of cruel and unusual punishment does not prohibit the death penalty (specifically contemplated in the 5th Amendment) is one obvious example—though, not surprisingly, one that remains the subject of debate. And if the meaning is not so clear? The task, then, is to find the most likely meaning, that is, the meaning that is least likely to surprise the text’s intended audience. Just as secret laws are not fully laws, so surprising judicial interpretations—those that violate the reasonable, historically-grounded expectations of the parties—lack the full character of law. This has become a particular problem in the United States as living constitutionalists have ruled from the bench for so long, altering expectations, constitutional structures (e.g. fostering construction of an executive-centered administrative state) and even fundamental institutions like the family. Indeed, an elite consensus seems to be forming that originalism and even “legal tradition” is nothing more than “what we’ve been doing for awhile” – with “awhile” stretching back, at most, a mere generation or two. But there can be no tradition where there is no consistency, unless the “tradition” we seek to vindicate is that of arbitrary judicial power. The only reasonable response is to recur to the text as understood within its historical context and rebuild from there.
Michael Perry has argued that, in examining constitutional provisions, we should seek to understand “how the provision was understood by the People, or would have been understood by them had they been paying attention and had they achieved access to all the relevant information.” This formulation focuses, quite properly, on the assumptions and purposes of the audience. And this perspective is deeply rooted in Anglo-American decision making, from the common law emphasis on pre-existing, customary understandings to longstanding norms of statutory construction as laid out, for example, by Antonin Scalia.
None of this is new, though, alas, it seems to require continual repetition, especially in the face of demands for ever more and more expansive rights. Philip Hamburger repeated the basic formula more than 25 years ago in showing how clear the historical record is in rejecting unenumerated constitutional rights. “Natural Rights, Natural Law, and American Constitutions” looked to the Constitution’s “unexplained assumptions,” its provisions’ “common intellectual context” in election sermons as well as legal and political debates. It piled example on example in showing that the generality of educated Americans understood the distinction between natural and civil, acquired rights and that Americans at the drafting of the Constitution understood that “only such natural liberty as was reserved by a constitution would be a constitutional right.”
The creation of new constitutional rights on the grounds that such rights were natural, hence too important to have been left out is without basis in a reasonable understanding of the Constitution. One who takes the time and trouble to enter into the intellectual world of the drafters and their intended audience can see this rather clearly. There may be questions of legitimacy, grounds for political struggles, perhaps even revolution, but there can be no legitimate judicial substitute for the spirit of the people in defending natural rights from the government where the Constitution has not barred its action. This makes all the more important the Constitution’s structural constraints; its character as a grant of limited, enumerated powers within a system of separated powers and divided sovereignty is reinforced by the 9th Amendment, not undermined by any supposed grant of unenumerated rights.
To reclaim originalism as a means by which the Constitution may be understood and applied by a self-governing people requires judges and lawyers to resume their traditional, humble work seeking law in text, context, and history. This requires that judges and academics actually seek to facilitate constitutional adjudication in keeping with the structure and purposes of the Constitution as written. The problem is, that Constitution is a frame of government granting limited, enumerated powers to separate branches according to their functions and intended to mediate among, rather than to rule and transform, states and other more local, natural associations. Thus, it allows for, indeed positively encourages, cooperation between religious and political institutions, assumes a “thick” set of moral beliefs and practices, and rejects the likening of liberty to license. It cannot do many (indeed most) of the things Progressives, libertarians, or even many contemporary conservatives might wish.
Presumably, those in positions of privilege and power are capable of relearning what has been forgotten, should they choose to forgo philosophizing and “constructing” meaning in favor of rediscovering it. The choice of method remains crucial: Is it to be philosophy in the abstract and unmoored from the past, or history firmly rooted within the Anglo-American tradition?
The one is suited to a subservient people governed by judicial rulers (and their elite adjuncts), the other to a sovereign people exercising their right to make and enforce their own laws.