The conservative attack on originalism

by Richard Schulman

One of the clichés surrounding the current Wuhan virus pandemic is that, once over, “the world will never be the same.” As though to make good on that claim in the weeks leading up to Palm Sunday, Passover, and Easter, two prominent conservative legal scholars launched attacks on that conservative holy of holies, the judicial doctrine of originalism. The two conservative attacks on originalism are likely seeking to catch the wave of interest in national conservatism among pro-Trump intellectuals. The irony of their attack is that President Trump owes his 2016 election largely to the all-out mobilization of the Republican base in support of his promise to nominate originalist judges and justices to the courts, which he did. Were he to renounce originalism as the two scholars recommend, he almost certainly would lose the 2020 election.

First, the widely criticized Adrian Vermeule

The attack by the better known of the two scholars, Harvard Law School’s Adrian Vermeule, was described by The American Conservative as having “set the insular legal theory wing of the internet aflame” with a “characteristically provocative essay in The Atlantic titled “Beyond Originalism.” So many fine legal scholars rushed immediately into print to defend originalism that it would be otiose and presumptuous for us to duplicate their distinguished efforts here. (Links to their criticisms may be found at the conclusion of this article.)

Meanwhile, F.H. Buckley escapes notice

But commentary and criticism have been lacking so far, to the best of our knowledge, for the lesser known of the two conservative calls for abandoning originalism, namely F.H. Buckley’s attack on originalism in an April 8^th essay in Law and Liberty titled “We can do better than the Framer’s Constitution.” From the standpoint of the conservative movement, Buckley’s essay is the politically more consequential of the two critiques of originalism for two reasons:

1. Vermeule is a Catholic Integralist. “The aim of the Catholic integralist is the integration of religious authority and political power,” according to an article in U.S. Catholic. Overthrowing the separation of church and state in the U.S. Constitution is so obviously a non-starter that Vermeule is likely just seeking to provoke interest in the lesser goal of the government enforcing a Christian-influenced view of morality – rather than seating the papal triple tiara in the White House.
2. This is where Buckley’s essay comes in. He has written speeches for President Trump and his son and his The Republican Workers Party was an important early defense of the Trump takeover of the party. His views will be taken far more seriously among Trump supporters than Vermeule’s. They provide a legal argument in support of the “common good” national conservative wing of the president’s supporters – such as Sohrab Ahmari, FirstThings magazine, and Senator Marco Rubio – who would like Christianity-based moral views enshrined in national laws and constitutional interpretation.

Replace Progressive morality with national conservative morality?

While the Framers were Christians and deists and not as intolerant of religious influences on national life as, say, the ACLU is today, they certainly didn’t think it was the part of the national government to legislate morality. That was a responsibility of the states, civic society, and individuals, subject to their not violating the principles of liberty enshrined in the Constitution.

Originalism is simply the doctrine that the words in the Constitution meant what they were commonly understood to mean by the public when they were written. This is the same standard that is supposed to hold in contract law or the interpretation of ordinary legislation. It should be non-controversial, but it has been vehemently opposed by Progressives, who want their policy preferences to guide the reading of laws, not what the original public meaning was.

Now that conservatives have an influence in the courts that they haven’t enjoyed in many decades, some conservatives, such as Vermeule, Buckley, and Sohrab Ahmary, want to have a national conservative “living constitution” supersede the Progressive one that the courts have imposed since Franklin Delano Roosevelt’s presidency.

Buckley’s critique of Vermeule

Buckley’s argument in his recent Law and Liberty article begins with a friendly chastening of his co-thinker Vermeule:

Adrian Vermeule’s recent essay in the Atlantic sketches an alternative to originalism, which today is the dominant theory of constitutional interpretation amongst conservatives…In its place, Vermeule proposes a “common good” paternalism that candidly enforces conservative principles about hierarchy, solidarity, and personal morality.

As provocative as this is, Vermeule nevertheless pulls his punches. Rather than arguing that conservatives should reject originalism, he might have argued that they must do so if they wish to advance a morally compelling argument.

Buckley: Originalists are Legal Positivists

The remainder of Buckley’s article is dedicated to his making just such a “morally compelling argument.” We summarize his argument in his own words – interspersed with our own comments.

[O]riginalism…is simply another form of legal positivism, the doctrine that places a Chinese Wall between what is and what ought to be the law. Originalists are the children of John Austin (1790-1859)…Austin thought that laws…might be good or bad, but in either case they’re still laws if enacted by the King-in-Parliament.

This is wildly wrong. This may be the modern English view of their constitution, but it was certainly not the Framer’s view. The UK has parliamentary supremacy. Not so the US. Laws passed by Congress are subject to judicial review to insure that they conform to the higher law of the Constitution. That document in turn is considered in the light of the higher law adumbrated by the Declaration of Independence and Amendment IX, which reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” It was precisely such common law and natural law considerations that led to the overthrow of the slave clause in the original Constitution. The Founders’ view of the legal framework they established was in the tradition of the 17^th century English jurist Sir Edward Coke in Dr. Bonham’s Case, where he affirmed that “in many cases, the common law will control Acts of Parliament.”

Buckley: no natural law in Framers’ Constitution

If originalism commends itself, then, it must be because the Framers’ Constitution is morally superior to that of today’s Constitution. That explains the temptation amongst some originalists to discover natural law principles in the Constitution. If one reads the Framers’ debates, however, you’ll mostly search in vain for Thomism or Lockean natural rights. Nor can one argue that, sub silento, they were there all along, that they were in the air that everyone breathed.

The first sentence above is a non sequitur and a red herring. As we noted above, originalism isn’t just an approach to the Framer’s Constitution but to all laws as well as private contracts. Certainly no claim of moral superiority is made by originalists in favor of the Framers’ Constitution over the Constitution as amended after the Civil War, which does have a just claim of moral superiority. Furthermore, contrary to Buckley, natural rights “were in the air that everyone breathed” during the founding period. Buckley could benefit from reading James Wilson’s writings. Wilson was a signer of the Declaration of Independence and the Constitution, and he was a principal author of the latter. He was one of the original justices appointed in 1789 to the Supreme Court and served there until his death in 1798. In 1790 Wilson wrote contrasting the American constitutional view to the parliamentary-supremacist views of Edmund Burke.

James Wilson:

What was the primary and the principal object in the institution of government? Was it — I speak of the primary and principal object — was it to acquire new rights by a human establishment? Or was it, by a human establishment, to acquire a new security for the possession or the recovery of those rights, to the enjoyment or acquisition of which we were previously entitled by the immediate gift, or by the unerring law, of our all-wise and all-beneficent Creator?

The latter, I presume, was the case: and yet we are told, that, in order to acquire the latter, we must surrender the former; in other words, in order to acquire the security, we must surrender the great objects to be secured. That man ‘may secure some liberty, he makes a surrender in trust of the whole of it.’ — These expressions are copied literally from the late publication [Reflections on the Revolution in France] of Mr. Burke.

Buckley cites extensively the Fugitive Slave Act in the original Constitution as refutation of the moral superiority of the Framer’s Constitution. But, as we noted above, it was precisely the eventual supersession of that clause upon higher, natural law considerations that proves the worth of the original Constitution as it was understood by James Wilson and his intellectual descendants such as John Quincy Adams and Abraham Lincoln. The counterpart to that understanding was and is the legal positivism adopted by Oliver Wendell Holmes and Progressive jurists.

Buckley: originalism is impeding national conservatism

Buckley writes further that “Originalism is a radical creed and as such is anything but conservative.” Buckley’s idea of conservatism is apparently that of Burke, the Ango-Irish parliamentarian, not James Wilson. But verbal arguments aside, it’s clear what Buckley is up to. He’s attacking originalism because he wants a national conservative “living constitution.”

Hasn’t the national disunity triggered by Roe v. Wade been enough? Do we really want a permanent war not just on abortion but every single difference of opinion between Progressives and national conservatives. Do we really want a permanent war over whose justices will impose their vision of morality on a resentful remainder of the nation?

We think not. Buckley and Vermeule’s wish to overthrow originalism is both bad politics for Trump supporters but, more importantly, an even worse recommendation for the nation.

Links to articles criticizing Adrian Vermeule’s attack on originalism
John O. McGinnis
Dan McGlaughlin
Randy E. Barnett

Photo credit: Wikipedia Commons