We Can Do Worse Than the Framers’ Constitution

“We Can Do Better Than the Framers’ Constitution,” argued Frank Buckley in this space, once again pressing his well-known preference for parliamentary systems over America’s constitutional arrangements. Had my good friend’s Canadian origins and early life under that country’s parliamentary system not rendered him such an agreeable chap, I would find it easier to take the gloves off concerning his latest scribblings along those lines. But his argument this time rests on a faulty premise, and so a brief critique is in order.

Conservatives, he writes, not only should but must reject originalism “if they wish to advance a morally compelling argument.” For originalism is simply another form of legal positivism, a judicial methodology indifferent to the moral character of the Constitution or the laws properly promulgated under it. Given that, “it makes no sense to say that courts should follow originalist principles, unless the alternative is expected to make things worse.”

At that point, I half expected Buckley’s “should” to mean that originalists were in a kind of internal contradiction: seemingly indifferent to the morality of the law, that is, what sense does it make for them to say that judges should follow originalist principles? But that’s not what he means. Rather, having associated originalists not only with John Austin’s legal positivism but, implicitly, with Austin’s moral theory, utilitarianism, Buckley’s “should” takes its force from that moral theory: not following originalist principles would likely make things worse, originalists seem to believe, which no utilitarian would want to do. Thus Buckley writes that originalism’s “plausibility as a rule that deserves to be followed rests on a rejection of its principal alternative—the left-liberal egalitarianism and libertarianism that informs much of our constitutional law.”

Not so. In fact, the premise on which originalism rests is straightforward and simple: judges should follow originalist principles—they should interpret and apply the law as written—because otherwise they’re not applying law, but something else, like their own “corrections” of the law. Thus when Buckley goes on to write that “originalism is necessarily a political creed that seeks to hide its politics,” he’s got it rather backwards. It’s a legal creed that makes no effort to hide—or reveal—any politics, including the politics that brought the law into being. Again, it aims simply to read and apply that law as written. And that is true whether judges are applying the American, the Canadian, or the old Soviet constitutions.

Buckley’s confusion rests, then, not with his contention that originalism is a form of legal positivism. He’s right on that. It is such a form, for originalism takes it as given that the duty of a judge is to apply the law to the case at hand. But to do that he must determine what the law is, as distinct from what it might or should be; and to do that he must read the words of that law consistent with their original public meaning. Otherwise, again, he’s not applying the law or fulfilling his duty as a judge. If the result of applying the law as written and properly read is morally unsatisfying, then change the law. But that’s for a lawgiver to do, not for a judge. Buckley would have the judge be a legislator. That is the end of the rule of law.

Failing to draw these distinctions, it is not surprising that Buckley argues next that if originalism commends itself, “it must be because the Framers’ Constitution is morally superior to today’s Constitution.” Again, that’s not what commends originalism, whatever its adherents’ constitutional assessments. He goes on, however, to question the moral superiority of the Constitution and to disparage “the temptation amongst some originalists to discover natural law principles” in the document, adding that “you’ll mostly search in vain” to find such principles in the Framers’ debates, their sometime conflicting views, and their practices, to say nothing of the original Constitution itself.

Many originalists are unabashedly “radical” in the sense that we believe that the substantive elements of our amended Constitution reflect fundamental, immutable moral principles.

The road on this point is well-traveled. Suffice it here to say simply that whatever the various views, differences, or practices of the Framers, what matters for law—and originalism—is what the Framers wrote, especially, here, the Reconstruction Framers. Most of what they wrote concerned structural and procedural matters, of course. But the substantive law they wrote—the moral vision implicit in the document, especially after corrected by the Civil War Amendments—comes straight out of the natural rights vision that the Declaration of Independence adumbrated. From the Preamble to the doctrine of enumerated powers, the Bill of Rights (especially the Ninth Amendment), the Civil War Amendments, and the structural limits on power, the Constitution stands for individual liberty secured by limited government. That is an additional reason to be an originalist—because, eventually, the Framers got it right—but again, it’s not the main reason.

Toward the end of his essay, however, when he speaks of originalism as “a radical creed” and “anything but conservative,” Buckley reveals the mind of a true parliamentarian. To be sure, many of us in the originalist fold are unabashedly “radical” in the sense that we believe that the substantive elements of our Constitution, especially and in particular as amended following the Civil War, reflect fundamental, immutable moral principles. Such principles constitute that additional reason why we are originalists and legal positivists who believe that the thus amended document should be interpreted and applied as written.

But against that position, Buckley offers this: “The conservative has a sense of human frailty and distrusts laws cast in stone, including constitutions.” Pointing to the great problem with our Constitution and laws today, their “want of reversibility,” and invoking Hayek’s “fatal conceit” as an organizing principle, the conservative, he continues, is “apt to prefer ex post reversibility under a parliamentary system to ex ante screening under the separation of powers.” Given the barriers to formal amendments, he concludes, “change must come incrementally, from the bench,” from “wise jurists” who will “identify the [laws] that need revision, and correct them.”

We still have no sense of the change Buckley has in mind, of course, much less why change is needed, apart from the “want of reversibility.” The most he has said on that score is an off-hand mention of “left-liberal egalitarianism and libertarianism” and a claim that “the evidence today is that parliamentary regimes are freer than presidential ones,” the truth of which is hardly self-evident.

But the narrower change Buckley does clearly urge—seeming to accept that we are not about to move to a parliamentary system—concerns the judiciary. In effect, he would have unelected judges act more like legislators. That might address the irreversibility problem, for sure, but in what direction? Originalism came to the fore a few decades ago precisely because judges were legislating from the bench.

Indeed, beginning in 1937, we had a good dose of “judicial revisionism,” albeit not the incremental kind, after Franklin Roosevelt threatened to pack the Supreme Court with six additional members. Since the ex ante screening afforded by the separation of powers had failed, shortly before that, to preserve the constitutional design for limited government—had failed to preserve the law—Roosevelt “nudged” the Court to do what the “old Court” had refused to do, allow Congress and the president to rewrite the Constitution other than through constitutional methods. So the chastened justices did it themselves. In short order, they eviscerated the enumerated powers doctrine, bifurcated the Bill of Rights and judicial methodology, and jettisoned the non-delegation doctrine, turning the Constitution on its head. As a result, we now have something of a parliamentary system, with an “open sesame” Constitution that has been a playground for political mischief ever since, and judges largely unwilling, until very recently, to check it.

Those recent judicial checks are not to be seen, however, as “judicial revisions” of the kind that Buckley seems to be urging, much less as those the New Deal Court executed. Rather, they are efforts to restore the Constitution as written, albeit still only haltingly and, so far, only at the margins. To rule otherwise would be to rule unlawfully, and that—on Buckley’s own utilitarian grounds—would make things worse.

Reader Discussion

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on April 18, 2020 at 13:23:29 pm

Nice essay; good attempt to inject some clarity into Buckley's rather confused justifications for "Parley-mentary" governance.

"The most he has said on that score is an off-hand mention of “left-liberal egalitarianism and libertarianism” and a claim that “the evidence today is that parliamentary regimes are freer than presidential ones,” the truth of which is hardly self-evident."

Not only is it NOT self-evident, Buckley's assertion is belied by almost daily evidence from two prominent Parliamentary systems - UK and Canada - where we observe ever more encroachments upon free speech, conscience and religious liberties. Where we observe the UK police forces arresting , the magistrates charging and the courts convicting a parent who objects to his "tranny"child's desire for transformation. Numerous other examples may be cited but....

Buckley is wrong not only because of anecdotal counterfactuals as I have just cited but his principal reason for asserting the superiority of Parliamentary governance is for "efficiency", or as Mr Pilon cites, "reversability" what does this mean? In previous writings, Buckley has lamented the fact that constitutional governance is often unable to change or reverse the policy prescriptions of the previous administration. It is, Buckley asserts, inefficient and time consuming, not to mention tumultuous to undo that which has been done. there are simply too many structural impediments to a wholesale revamping of the governing milieu / epistemology. In short, Buckley desires a modus operandi not unlike Andrew Jackson's motif of "To the victor belongs the spoils." I am not herein speaking of patronage but rather policy, ideology and the implementation of the panacea du jour.
In effect, Buckley wishes to permit the temporally determined desires / wishes of a temporary majority, oftentimes unaware of the implications of those wishes, to completely restructure any and all previously agreed upon policy prescriptions. This is "efficient" per Buckley.
That it may be. However, unlike the US constitutional structure of governance which was (is????) intentionally structured to temper the "passions" of a fleeting majority, Parliamentary governance aspiring to the level of efficiency preferred by Buckley will be dependent upon those passions AND there will be no structural impediments to implementing those passions.
Yet, in his very desire for "reversability, surely Buckley must recognize that the next delusion, the next media induced passion may very well result in those very same "passion" induced changes being "reversed."
Consequently, Buckley's efficiency model is shown to be unsupportable and unsustainable except to the extent that "passions" may be *made* continuous.
Buckley's answer to this, of course, is to commandeer the Judiciary to assure that those passion induced changes are provided with the imprimatur of the LAW.
Problem: The same inherent contradictions confronting the Parliament also will obtain when the Judiciary changes. Moreover, as we have now induced the Judiciary to respond not to the constraints imposed by a written constitution but to the "passions" of the crowds (to include the Parliament) we have no assurance that Law will be anything but diktats from the Bench.
Anyone up for a more "passionate" form of governance, please sign up with Buckley.

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on April 20, 2020 at 09:42:38 am

Thank you for your comment, Gabe. Let me respond very briefly to your central point, that Buckley's concern about the American system's "want of reversibility" prompts him to prefer a more flexible parliamentary system, but that unleashes, as you say, rule by the passions of the moment.
Rather than comment on the empirical evidence for that, let me say simply that Buckley is right to note today's irreversibility problem. The Framers, however, saw that difficulty not as a problem but as a virtue: having "gotten it right," at least after the Civil War Amendments were added -- they wanted to preserve our system for liberty under limited government. But once the New Deal Court opened the floodgates to massive government, irreversibility increasingly became a problem due to the incentives the modern welfare state has created. The more of us who become dependent on government, the more difficult it is to restore the original Constitution for limited government.

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Roger Pilon
on April 20, 2020 at 14:19:31 pm

Pardon my 'shorthand" as much is consequently left out but we are agreed on the Framers intent, the vitiation of that intent by post New Deal creations, etc.
As for reversability: Yes, it is a problem.
It strikes me, however, that Buckley could achive his goal of reversability if he would simply assure the repeal of the Pendleton Act as so much of what constitutes impediment to proper correctives resides within the overgrown bureaucracy despite Executive attempts to correct it.

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on April 28, 2020 at 06:26:41 am

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A Jeffersonian Proposal for the Constitution

In the interest of starting a discussion about constitutional purpose, Sandy Levinson argues "We best honor the Framers, then, by exhibiting their own willingness to challenge the verities of their times and to cease our own often “blind veneration” for the Constitution they created. What has been long settled may not be subject to conversations about “meaning,” but it is surely past time that it be analyzed for its wisdom in a 21st century America." But, what we might ask, has been settled, and what is open for re-creation?