At its best, originalism encompasses most of the arguments critics claim it cannot, and does justice to both the text and structure of the Constitution.
In his lucid and compressed account of the argument of Damon Root’s new book Overruled, the excellent libertarian judicial scholar Ilya Somin has done us the service of presenting in a pithy and powerful way the libertarian vision of the proper place of the Supreme Court in our constitutional system. The key conflict these days is between libertarians and (social) conservatives, and the key interpretive choice is between “originalism” and deference to legislatures.
According to Somin, the libertarian view is becoming increasingly mainstreamed while the conservative view is on the defensive—soon to be defeated, in fact, although “not without a fight.”
The libertarian innovation hidden in the appeal to originalism is the proposition that our Framers intended that their original or classically liberal principles would, by means of the Supreme Court’s jurisprudence, routinely trump legislative deliberation. To me it seems quite possible to be an originalist in the sense of being all for natural rights, and still doubt that judicial review was ever meant to be much more than an “auxiliary precaution” that would be rarely used. Liberty’s main defenses against “majority faction” and such, if the Federalist is to be trusted, are 1) the coalition-building process in the legislature of a large and diverse republic, and 2) the separation of powers’ checks and balances.
Assuming, of course, that we count the Bill of Rights as part of the original Constitution, we can see our Constitution, against the personal preference of Madison, as being very explicit about protecting the states against all three branches of an intrusive national government. The original design of our Constitution didn’t include a mandate to use high principle to transform every detail of state and local government, much less local life. We read Tocqueville to remember that part of the wisdom of our Framers was to leave the free institutions of local government pretty much alone.
Somin, as we might expect, quickly deploys Buck v. Bell (1927) as the trump card that displays the eugenic evildoing facilitated by extreme legislative deference. But I’m not sure that there’s a single conservative around today who’s for that degree of legislative deference. Justice Holmes is on no list I’ve ever seen of conservative classics. Even when Justice Scalia says he thinks Lochner v. New York (1905) was wrongly decided, he’s thinking of Harlan’s measured willingness to give the benefit of the doubt to the legislature’s reasonable regulation, not of the nihilism of the lone-wolf Holmes.
Still, Somin is exactly right that it makes no sense to say that conservatism (meaning the Republican coalition) can be described as united against the judicial activism of the liberals or Progressives. Citizens United v. Federal Election Commission (2010) was arguably judicial activism in the nonjudgmental sense of being a spirited intrusion by the Court into the political process. Had the Court overturned Obamacare, that would have been judicial activism, too. Again, I notice conservative judicial activism without making a judgment as to whether the various laws in question are constitutional.
We can add that all libertarians and most conservatives believed that the Court unconstitutionally refused to render an activist decision in Kelo v. City of New London (2005). All libertarians and most conservatives are judicial activists when it comes to property rights. There is a strong argument that—as seems to have been the Chief Justice’s conservative opinion in upholding Obamacare in 2012—prudence dictates that the Court allow the political process to work itself out whenever possible. Still, conservatives and liberals agree, for the most part, on what’s called economic conservatism, although some conservatives would go further than others in understanding, for example, the core institutions of the welfare state as fundamentally unconstitutional.
The real difference between the conservatives and the libertarians is the latter’s proudly consistent combination of “social liberalism” with “economic conservatism.” The consistency here is affirming a way of life that maximizes individualism. So we see that major (seemingly conservative) donors using their vast wealth to influence public policy (and there’s nothing wrong with that) such as the Koch brothers and Peter Thiel favor Republican candidates only because they consider the economic issues more urgent than the social ones. In Thiel’s view, there’s no need to be concerned anymore with the social issues because social liberalism has already won, although he and Charles and David Koch still fund socially liberal causes—mainly those concerned with gay rights—too.
The nuanced libertarian conclusion is that the road to the triumph of social liberalism is paved by the Court, which has a huge role in gradually transforming public opinion. Victory on the economic front depends on political transformation, which is to say winning elections. And winning elections requires allying with social conservatives who are for economic liberty but against abortion and same-sex marriage and generally more concerned than a libertarian would be about the atrophying of relational life in our country.
Well, to be fair, libertarians might share that concern, but they typically conclude that most of our social pathologies are caused by welfare-state dependency and would disappear with much lower taxes and many fewer regulations. Conservatives don’t think either the problem or the solution is that simple.
Now, in my value-neutral definition, no one can deny that the decisions in Roe v. Wade (1973), Planned Parenthood v. Casey (1992), Lawrence v. Texas (2003), and United States v. Windsor (2013) are judicial activism. They are “originalism” only if you follow the Progressive logic of Justice Kennedy. None of the Framers would have recognized a constitutional right to an abortion or to same-sex marriage.
That makes these issues, to be clear, fundamentally different from those concerned with race. We can read Mr. Jefferson writing against slavery as a monstrous violation of rights, and we know that the Constitution’s compromises with slavery were made in an anti-slavery, pro-individualistic spirit. Words referring to particular persons as members of a race (or class or gender or religion) were deliberately excluded from our Constitution, and so it’s easy to say that, say, the amendments after the Civil War were in accord with the spirit of our Framers. The same, with a bit more controversy, goes for the result in Brown v. Board of Education (1954) or the Civil Rights Act of 1964.
We can also remember that the Court’s record on race has generally been terrible—Dred Scott, Plessy, Bakke, and many others remind us that it is ridiculous to rely all that much on the Court to protect our rights.
Justice Kennedy in Roemer v. Evans (1996) made the point, in effect, that the Constitution is silent on sexual orientation, too, and so legal distinctions based on sexual orientation are arbitrary deprivations of liberty as much as those based on race. Subsequent state and federal court opinions and legal scholarship suggest that he carried the day on that—a great libertarian victory. Still, that wouldn’t mean that a single author of either the Constitution or the Fourteenth Amendment imagined that marriage was other than an institution that depended on the natural difference between men and women and intrinsically connected with the biological reproduction and childrearing. Even our founding individualist philosopher, in his most radical or “esoteric” moments (John Locke), didn’t deny that. That’s not to deny that states, in the spirit of individualistic social progress, can choose, through their legislatures, same-sex marriage; it’s just that the Constitution can’t be interpreted in a genuinely originalist spirit to require it.
As for abortion, the enduring controversy, from a natural rights perspective, is the conflict between the rights of the fetus or unborn baby and those of the pregnant woman. Even our Constitution illuminated by the Declaration of Independence can’t resolve that! According to the Declaration, being pro-life trumps being pro-choice; but that doesn’t resolve the question of when a member of our species becomes a being with rights. Some say conception, others something like “viability,” others birth, and others age two.
It might be the beginning of wisdom to recognize that each of these positions, although seeming monstrous to some, actually is backed up with reasons that can’t be reduced to the irrational animosity that drives religious prejudice—and that also drives claims to unbounded autonomy. The Court persuasively asserts in Planned Parenthood that, under our Constitution, women can’t be reduced to reproductive machines for the state or considered less than men as free economic and political actors. It does not follow that a way to achieve the end of maximum individual freedom can be the violation of someone else’s rights.
So, all in all, libertarians, believing that their “social liberalism” can be enforced by the courts, have to fall back on Justice Kennedy’s progressivist argument in Lawrence. Our Framers deliberately left the word “liberty” in the Constitution undefined. That’s because they knew that they themselves weren’t limited by the prejudices of their time and place; they were blind to the full implications of individual liberty or personal autonomy. They, in their progressivist faith, believed that laws thought necessary and proper to one generation of Americans might seem like arbitrary deprivations of liberty to the next. And it would be the Supreme Court that would make the authoritative judgment on the progress of our understanding of what liberty is at any particular time.
So the right to choose an abortion wasn’t always a constitutional right, but it became one. Same with the right to same-sex marriage. If you think about it, there’s a libertarian faith here in the arc of liberty or justice or technology pointing to the gradual withering away of most of the state. We are in the best of times, this thinking goes, when it comes to human liberty, and this is owing to interrelated progress in technology and morality.
That uncritical faith in progress has, in the view of conservatives, generated unconstitutional judicial activism. The judiciary interposes itself in political controversies while operating under an understanding of liberty that is deeply questionable and surely time-bound. Under this understanding, unprecedented experiments in liberty or autonomy are presented as constitutionally mandated, and so those who think otherwise have to be regarded as thinking irrationally or unconstitutionally. Supposedly those who oppose abortion or same-sex marriage are as “reactionary” as segregationists or those who talk up the advantages of living in an earlier stage of the division of labor. To be sure, most libertarians, opposing illiberal political correctness, would grant reactionary or untrue free speech legal and academic protection, but they still fuel the politically-correct impulse to exclude it from plausible constitutional discourse.
Notice, please, that I’m not taking a position on the merits of the right to an abortion or laws allowing same-sex marriage. I’m not criticizing the Koch brothers or Peter Thiel for their personal preferences or for using their money to facilitate socially liberal political initiatives. It’s just that we conservatives, whatever our personal preferences and beliefs, don’t think there’s any constitutional warrant for judicial activism to resolve issues that are left, by our Constitution, for legislative deliberation and compromise, precisely because they involve reasonably competing views of what human liberty is.
I applaud Somin for laying out the real issues so clearly. The best of the libertarian constitutional scholars is a big fan of Justice Kennedy, urging him only to be more consistent in applying “the presumption of liberty” to all American law. Our new birth of freedom is best facilitated by jurists who are loudly and proudly both pro-Lochner and pro-Roe. And so Justice Kennedy has been lately, as in his enthusiastic effort to restore the original view of the Commerce Clause to overturn Obamacare.
When libertarians, in pursuit of the new birth of freedom, ally with liberals on some issues (in affirming the true progressivism of social liberalism) but with conservatives on others (in affirming the true progressivism of property rights against reactionary welfare-state, rent-seeking political institutions), they act with consistency and, one could argue, sensibly—except insofar as they really believe that an “originalist” Court can or should be their active agent all the way down the line.
It might be the case that the dynamics of the 21st century global competitive marketplaces make the triumph of the libertarian agenda close to inevitable, as, say, Tyler Cowen’s futurism sometimes seems to suggest. If this were true, it would make judicial activism seem somewhere between superfluous and epiphenomenal.
But it may well turn out that political deliberation can intelligently resist or direct economic and technological progress. The current libertarian enthusiasm for judicial review depends on justices appointed by Republican Presidents. Those Presidents, of course, never would have been elected without the support of those who are opposed to judicial activism and for “power to the people” through their legislatures.
If a purely libertarian agenda can’t prevail at the polls, in other words, it won’t prevail over the long term in the jurisprudence of the Supreme Court.
When we conservatives read the Declaration and the Constitution, we remember their true origin in legislative deliberation and compromise. But that’s a story for another day.