Originalists Were Always for (Some) Judicial Engagement

Editor’s Note: This essay is part of a Law & Liberty Symposium on Ken Kersch’s Conservatives and the Constitution, and is drawn from a panel discussion held at Pomona College on November 15, 2019 and sponsored by Claremont McKenna College’s Henry Salvatori Center’s Lofgren Program in American Constitutionalism.

Before turning to the focus of my essay on the continuities in 20th-century conservative constitutionalism (namely, that even critics of “judicial activism” have consistently been devoted to “judicial engagement” when federalism issues are at stake), I would like to begin with a churlish complaint about Ken Kersch’s Conservatives and the Constitution: it is longer than its pages would indicate, because this is a book where half the enjoyment is in the footnotes, which are more than citations. They also contain some pretty bracing asides, observations, and condemnations of some I’d consider friend and some I’d consider foe.

The provocative footnotes start early: In one, Kersch shows that he has little patience for those progressives, such as Nancy McLean, who flatten constitutional conservatism to be a mere instrumental façade for nefarious causes. Others are inscrutable or laced in layers of irony. For instance, Kersch seems to approve of conservatives’ popular interest in history, which he favorably contrasts with progressive myopia in only caring about the specific moment of civil rights history but nothing before or after. Yet he then cryptically has not one but two footnotes exclusively to Bill O’Reilly-branded pop history books, which perhaps is all he thinks conservatives will now read?

But as amusing as it is to try to parse these asides, what I like most about this book is that, in spite of its page count, it’s a strikingly brisk intellectual history that makes the divides it describes come alive. It is one part comprehensive annotated bibliography and one part crackling play-by-play of intellectual combat. Kersch shows how these constitutional debates were not just instrumental covers and rationalizations of interest, but true intellectual disagreements: Whittaker Chambers versus Ayn Rand on religion and materialism; right-wing civil libertarians against Cold Warriors; those who considered unions as salutary intermediate institutions versus those who saw them as consolidated and coercive powers requiring restraint like monopolistic corporations or big government itself; or Forrest McDonald and Stephen Miller defending the police powers against laissez-faire libertarians. Much of the book is on these conflicts, but Kersch is also interested in continuity—how some branches of conservative constitutional thought survive, others are shaped and grafted, and others pruned off entirely.

Consistent with its desire to take these intellectual currents seriously, Conservatives and the Constitution mostly escapes the tendency of some of the scholarly literature to treat originalism purely as a product of conservative backlash to the 1960s and 70s—an assessment which may be true if we understand originalism as a term rather than a concept, but which, on the whole, obscures more than it illuminates.

Nonetheless, I think the book still falls prey to the related tendency to play “gotcha” with originalism by arguing that instrumental originalist thinkers have committed a hypocritical bait-and-switch by once calling for deference to majoritarianism but now being more comfortable in seeking judicial engagement. According to this account, originalists enraged by an “activist court,” and particularly by Griswold and Roe, adopted the New Deal majoritarianism that had once been used by progressives to attack Lochner v. New York (1905) and its progeny. Yet they suddenly became judicial activists once they seized control of the federal judiciary themselves.

But much of this apparent contradiction is because the bulk of the Warren (and early Burger) Courts’ decisions that had originalists and proto-originalists so worked up—and still continue to have them worked up—were those which struck down the use of states’ police powers which, according to traditional constitutional law (to say nothing of the Tenth Amendment), do warrant a strong level of deference. As the Court had determined long ago in cases like Mugler v. Kansas (1887) and Jacobson v. Massachusetts (1905), federal judges should defer to state legislatures except where doing so conflicts with the explicit text of the Constitution. Indeed, it is no accident that the Warren and early Burger Courts’ cases that still make many constitutional conservatives the angriest are those which seem most tangentially connected to the text of the Bill of Rights or Fourteenth Amendment, while conservatives have generally made their peace with the era’s free speech, search and seizure, equal protection, and incorporation cases.

By way of contrast, other than the citizenship-stripping cases and especially the pro-communist speech decisions, not many prominent Warren Court cases that overturned federal activity come to mind. As Scot Powe has contended, the Warren Court truly hated the states. But as Kersch’s account makes so clear, the particular anxieties of mid-century conservative constitutionalism were deeply shaped by the Warren Court, so we should not be surprised to see them calling not merely for majoritarianism but also for renewed enforcement of structural provisions of the Constitution. This is just what the Old Right had once insisted on (even if, as many subsequent conservative commentators concluded, it had overreached in restricting the police powers via “liberty of contract”), and this combination was what 1960s conservatives sought in light of the Warren Court’s jurisprudence. For example, Barry Goldwater’s strict views on federalism, which led him to vote reluctantly against the Civil Rights Act, were further honed by consulting not just Robert Bork but also Goldwater’s Arizona ally, the then-private lawyer William Rehnquist.

If we take those two as models of an earlier judicial conservatism, we find no trouble seeing majoritarian defenses of state police powers mixed with an insistence on judicial enforcement of federalism and the separation of powers. One can perceive this in setting Rehnquist’s police powers-friendly Roe dissent alongside states’ rights decisions like National League of Cities v. Usery (1976), arguably the first strike against New Deal constitutionalism, which occurred before the political ascendancy of originalism (and which included Eisenhower holdover Potter Stewart—appointed long before the term “originalism” was in use). Likewise, in the context of the separation-of-powers, Rehnquist’s solo concurrence in Industrial Union Dept., AFL–CIO v. American Petroleum Institute (1980) floated a resurrection of the non-delegation doctrine. The supposedly relentlessly majoritarian Bork similarly defended judicial enforcement of federalism alongside deference to state police powers. Indeed, Bork explicitly contended that the Court was right to overrule “liberty of contract” cases like Lochner and Adkins while also arguing the Court’s massive expansion of commerce clause authority in Wickard v. Filburn (1942) was decided incorrectly.

Some of this is already implicit in Kersch’s analysis. As he notes in the first of his sections on “conservative originalisms,” the political, not the scholarly and legal objections to then-dominant constitutional doctrines were primarily directed against the overwrought New Deal reinterpretations of the general welfare clause of the spending power, the commerce clause, grants-in-aid, and the other usual targets of our contemporary “judicial engagement” originalism. He later includes, buried in footnotes in the markets section, similar 1950s and 60s conservative objections to Wickard and Steward Machine v. Davis (1937). Perhaps Kersch will flesh out this material in the second volume’s federalism section, but this tendency toward renewed enforcement of the Constitution’s structural provisions was no late-sprung surprise. Rather, it was already built into conservative constitutionalism from the beginning of the period Kersch studies, back when his subjects were wandering in the political wilderness.

Along these lines, though not necessarily persuaded of it myself, I want to propose for the sake of argument and debate an alternative framing to the one Kersch adopts, but one that I think can be drawn from a couple asides in the book. Kersch is clearly troubled by the mainstreaming of the Christian right, which he argues has corrupted the better—perhaps more Goldwater libertarian and/or proceduralist?—wings of the originalist legal movement, though it should be noted that he’s not necessarily on board with these either.

But even if one were to object to the increased influence of the Christian right, it’s worth asking to what extent the Christian right has also been tamed by originalism, such that even its proponents have had to engage in political debate on effectively Rawlsian public square terms not about revelation or natural law but about history, text, and public meaning.

Contemporary pro-life advocates are much more likely to have been tamed by the proceduralism of the initial anti-Roe actors (or Scalia’s Casey critique) than vice versa. They may tell themselves the stories of moral apocalypse that so trouble Kersch, but at the end of the day, they know they cannot politically survive on these. Now maybe Kersch thinks this is purely deceptive—the proverbial fascism wrapped in the American flag. But I have often encountered a variation of the critique that the conservative evangelical Francis Schaeffer initially made of Billy Graham, that social conservatives feel deeply shaped by the liberal framework of America (too much so, for Schaeffer’s taste). My experience is that, whether out of true conviction on behalf of the American project (as in most cases) or grudging necessity (in rarer ones), contemporary social conservatives recognize that paying fealty to the constitutional proceduralism of originalism is the only game in town.

In some sense, this shouldn’t surprise us, as the story perhaps ends where it begins, albeit after a circuitous route. Just as in the 1920s, a commitment to what we would now describe as originalism continues to serve as the primary link connecting Republicans of various stripes. At that time, Republicans ranging from the conservative Calvin Coolidge to the ardent progressive William Borah aggressively endorsed James Beck’s originalist constitutional treatise. As Kersch’s story thoroughly chronicles, with originalism assailed by the New Deal constitutional regime (except in the case of William Crosskey’s attempt to reconcile the two), conservatives attempted to bolster it with a variety of additions such as Jaffa’s Declarationism, Bradford’s agrarianism, Kirk’s or Bozell’s traditionalism, economic libertarianism, Catholic natural law, or some combination of the above. But the tensions between these proved in some sense insurmountable: the center of the Venn diagram, the only common ground that they could agree on, capable of bringing together, for example, Randy Barnett and Robby George today was the traditionally understood but now renamed “originalism.”

Although the Old Right only appears in a few footnotes after Kersch recounts its collapse, it seems to me that today’s originalism is strikingly similar to a chastened form of the Old Right’s constitutionalism, which according to Kersch believed “in a public philosophy holding a narrow conception of the powers of the national government, an expansive understanding of the powers of the states, where constitutionally protected rights are not involved, and a robust conception of rights and prerogatives of private property.” Sounds familiar. In other words, one can ask if today’s academic originalists and Federalist Society are in fact just picking up what was handed over from the Americans for Constitutional Action, who in turn picked it up from Willis Van Devanter and George Sutherland?

But to the extent we can try to traverse these contours of conservative (and largely Republican) legal thought, it’s because Kersch has been our John C. Fremont, giving us a map of some very difficult terrain.