The manifesto for “A Better Originalism” grounded in transcendent moral truths and a teleological conception of the regime has been ably critiqued and ably defended in this space. But these critiques have pertained largely to the question of judicial authority. The question of power—its nature, its tendency to growth, and how people who wield it tend to behave—requires attention as well.
One hesitates to accuse the authors of “A Better Originalism” of error, but they must contend with at least the possibility of two. One is the latent premise that constitutional issues are, by definition, judicial issues. That is, the authors seek a different kind of constitutional interpretation, and they direct their missive to judges. Why not to legislators? Or to citizens? More on this presently.
The second error is the assumption that the kind of judge they seek is a) available in considerable numbers and b) likely to remain that kind of judge when invested with power—especially power of the kind the authors describe. Yet somehow “A Better Originalism” illustrates the possibility for a different kind of judge by noting the persistence of the wrong kind of judge. One is Justice Neil Gorsuch, whose decision in the Bostock case they take as proof that conservative jurisprudence has gone off the rails. Might the persistence of bad judges, or judging, call into doubt the thesis that we should rely on judges in the first place?
Judges should judge well, but they are not suited to be moral guardians of the regime. American law school curricula do not prepare future judges to ascertain the moral truths beneath the law. They train them to practice law. If there was ever a judge who broke this mold and held out hope for the kind of jurisprudence “A Better Originalism” seeks, surely it was Gorsuch, who studied natural law with John Finnis.
But the problem runs deeper than judges who are unsuited to the task “A Better Originalism” would assign them. Judges so tasked would be powerful. And one moral truth that transcends and undergirds the American regime is that, as Federalist 48 explains, “power is of an encroaching nature.” Put otherwise: If a man or woman is anointed to identify the moral ends of the regime and to issue rulings imposing them, how might we expect such a person to behave? With humility and restraint? Or with arrogance and error?
We know power is involved in “A Better Originalism” because crisis, the handmaiden to power, has been invoked: We are enduring “the greatest crisis of the regime since the Civil War.” Really? Not Woodrow Wilson run amok? Not Jim Crow? A crisis, perhaps. But the worst since the Union was fractured over the enslavement of human beings? One hesitates to say this is a power grab. But it is difficult not to observe that it is the kind of thing people seeking power say.
In terms of how judges with power behave, we have data, as it were, to go on. Justice Anthony Kennedy, the Knight Errant of the Sweet Mystery, was famously moralistic. Chief Justice Earl Warren saw himself in exactly the terms “A Better Originalism” proposes: looking beyond the letter of the law to its underlying purposes.
Now, it will not do as a rejoinder to call this relativism—to say that of course judges can err and that thoughtful people can objectively say so. But the authors launch exactly that preemptive strike: “If our friends claim that judges on the Left will take this as a new license for moral reasoning untethered, our answer is: why do we suppose that we cannot tell the difference between arguments that are plausible or specious?” That defense is undeniable. It is also irrelevant to the question of power.
The point is not our ability to say that judges have erred. The point is that jurists do err, and the situation of judges, especially those “A Better Originalism” seeks, makes them particularly prone to error. By design, they are isolated. They are powerful, a quality that mixes poorly with moralism and tends to blur recollection of one’s fallibility. And the nature of their authority conduces to moralism.
It matters, then, whether “A Better Originalism” is written to be read like Book VI of The Republic—as establishing an ideal while being indifferent to its attainability—or whether the authors need to tell us where to find these judges and how to keep them honest. Otherwise, they are in the position of the economist stuck in a hole whose solution is to assume a ladder.
True, the learned Professor Hadley Arkes, one of the authors of “A Better Originalism,” has written on this site that he and his colleagues follow Lincoln in believing the judiciary is subject to checks by the other branches of government. Yet “A Better Originalism” also says the separation of powers is subordinate to the grandiose sweep of the American regime’s ends: “the health, safety, prosperity, and the flourishing of nation, communities, families, and individuals alike.” Never mind that people—reasonable people—disagree as to what conduces to these ends. If a judge rules in favor of—take your pick: why not prosperity?—and the legislature attempts to rein him or her in, does the process or the substance prevail?
The manifesto bases this argument on the idea that a regime must have ends to which processes are subordinate. Otherwise, genocide or slavery would be morally acceptable if democratically chosen. This is a low bar, a reductio ad absurdum obscuring the fact that the ends the authors seek (health, safety, prosperity, and flourishing) are far more opaque. Yet even slavery was abolished in America by the republican means of a constitutional amendment, preceded by a war fought by citizen-soldiers. The Supreme Court was far worse than useless—which, yes, proves judges can be wrong and that we, like Lincoln, should say so. But Chief Justice Taney, who freed his own slaves, genuinely thought he was saving the union. All that sorry episode proves is that judges are not very good at saving the country. With apologies to Madison, unfettered power is to error what air is to fire.
More broadly, a society that would choose genocide or slavery today is too profoundly corrupt to be saved by judges. In Federalist 55, Publius addresses those who think Congress will commit every abuse it can. His reply works as well for those who believe the people will do so:
The sincere friends of liberty, who give themselves up to the extravagancies of this passion, are not aware of the injury they do their own cause. As there is a degree of depravity in mankind, which requires a certain degree of circumspection and distrust: so there are other qualities in human nature, which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form.
That brings us back to the first error of “A Better Originalism”: that all constitutional issues are judicial issues. To judges who do not seek—and apply—the moral truths beneath and beyond the law, the authors apply the dread epithet “positivist.” Yet the moral truths beneath the law would be better applied in the course of making it, not interpreting it, just as James Wilson’s science of law was a science of legislating.
As Robert Bork, the now desacralized martyr of constitutional conservatism, explained, judges must be positivists but the people who make the law—legislators and citizens—cannot be. Reviewing Harry Jaffa’s Original Intent and the Framers of the Constitution in National Review in 1994, Bork wrote:
The Framers were not legal positivists for the very good reason that no one who makes law can be. The lawgiver must have ideas of right and wrong that antecede the law he makes. The Framers wrote law, presumably embodying as much of their thinking on natural rights as prudence allowed, and the judge is bound to follow the law no matter what he thinks of its correspondence to natural law. That means that, in his judicial capacity, though in no other, the judge must be a legal positivist.
Legislators must understand the ends of the regime and the moral foundations of the law. Ultimately, such appeals must be made to the citizenry. Perhaps there is a need for a better originalism. It is less clear that it should be entrusted to the professional class—judges—which the authors blame for making such a mess of the old one.