The particular danger of conservatives’ turning to the courts to pursue preferred outcomes, even constitutional ones, is that doing so legitimizes the same strategy by constitutional liberals, who will—it bears repetition—sooner or later reassume control of the levers of judicial power. The time for warnings may soon give way to a season of regret: The liberal judicial ascendance is begun.
Seeing the star of Vice President Biden finally begin to fade with his decision to not seek the Democratic Party’s presidential nomination reminded me of the rather sad spectacle that occurred during his chairmanship of the Senate Judiciary Committee in 1987. When my friend, the late Bernard H. Siegan, was nominated by President Reagan for the U.S. Court of Appeals for the Ninth Circuit that February, he faced a firestorm of opposition due to his seminal advocacy of property rights and economic liberties.
In the past, I have noted that there are three main arguments for originalism: 1. Originalism as an interpretive theory (the most accurate meaning of the original document); 2. Originalism as a normative theory (the most normatively desirable interpretation of the Constitution); and 3. Originalism as positivism (the original meaning is the law).
Here I want to explore a type of theory that intersects between the second and third categories: a theory that views the original meaning as the law, not based on positivism, but based on a normative or idealized conception of the law.
If one looks back at some of the old originalist theories, I think it is possible to read them as adopting an idealized conception of the law. The law is not what the rule of recognition requires, as in the positivist theory. Nor is the law what would lead to the best results in general, as some versions of the normative theory hold. Instead, the law is determined through an idealized conception of the law.
It is something of a rite of passage for the libertarian-minded to go through a flirtation with Ayn Rand. Her work is popular and accessible enough to lure students in at a young age and provide their first introduction to ideas on liberty. I went through a similar flirtation with Robert Bork.
I had the good fortune to be asked recently to contribute to a memorial symposium on Judge Robert Bork’s work in the University of Chicago Law Review’s online forum. My essay (link no longer available) showed that he was a prime catalyst for both originalism and law and economics—two movements that push law back toward being once again an instrument of social well being. These dual, dynamic contributions made him the most important figure of the intellectual legal right in the latter half of the twentieth century. And his ideas could not be defeated by the Senate vote that denied him a seat on the Supreme Court.
Two giants of the intellectual right died last year, Robert Bork and James Buchanan. The first will be forever identified with originalism and the second with public choice. The Law & Economics Center of George Mason Law School invited me and other scholars to commemorate their work and that of Armen Alchian, a fine economist and price theorist who also died in 2013.
Thinking about the contributions of Judge Bork and Professor Buchanan together helped me understand the strong relationship between the rise of public choice and rise of originalism. The public choice view provided support for a constitution with features that constrain ordinary politics, protecting key social institutions like rights, federalism and the separation of powers. Originalism provided a theory of interpretation that supports these constraints on democratic politics, preventing them from being eroded by the forces that would favor their erosion, according to the predictions of public choice itself. I thus decided to write about the relation in essay called: Public Choice Originalism: Bork, Buchanan and the Escape from the Progressive Paradigm.
Here is a bit from the introduction of the paper:
Richard A. Posner has been called his generation’s “Tenth Justice,” a judge like Learned Hand or Henry Friendly whose prolific intellect and erudite jurisprudence rank him in quality and influence among members of the Supreme Court despite never having sat alongside them. Readers of Posner’s new book, Reflections on Judging, may both concur in his ranking as tenth and be grateful that he stayed that way.
(This three part post addresses the new article on Originalism by Berman and Toh. In my first post on this article, I argued that the New Originalism is not primarily concerned with theories of law. Here I move on to Berman and Toh’s discussion of the old originalism.)
Berman and Toh also claim that the old originalists were mainly concerned with theories of adjudication rather than theories of law. Berman and Toh assert that Bork, Meese and Scalia are all focused on constraining judges rather than about the law.
But this claim is also problematic. To begin, Berman and Toh admit that Raoul Berger – perhaps the oldest of the old originalists – had a theory of law. But Bork also (in the Tempting of America) argued that the Constitution was law (and therefore could only be changed by legal procedures). In fact, that might have been his principal argument.
Even Meese in a short speech to which Berman and Tod refer, founds his argument on the fact that the Constitution is law. It is true that he uses that as an argument for why judges are bound by that law, but the basis of his argument is that the Constitution is law.
In addition, old originalist Lino Graglia also has a theory of the Constitution as law, as Berman and Toh admit.
For the bulk of the last generation, a conjunction of conservative legislatures and liberal courts enabled judicial conservatives to avoid a theoretical tension it is now time to confront: that between original intent and judicial restraint.
The tension was alleviated by the fact that, given the blend of conservatism in the electoral branches and liberalism on the bench, advocates of original intent and judicial restraint reached the same conclusions in 99 cases of 100: If majorities made decisions compatible with constitutional originalism and courts were inclined to overturn them—see Roe v. Wade as the paradigmatic example—the natural default for conservatives was judicial restraint. Conservatives, led intellectually by Judge Robert Bork, preached a doctrine of deference to majorities.
Various commentators have discussed what the constitutional world might look like now if Judge Bork had been confirmed as a Supreme Court Justice. Jack Balkin writes: Despite Bork's defeat, movement conservatives actually got their hero. Clarence Thomas has proven to be everything that Bork might have been, and more. I rarely agree with Thomas's views, but my study of Thomas's opinions in the past twenty years suggests to me that he may actually be a more successful and intellectually interesting Justice than even Bork would have been. (And that, of course, is saying something, given Bork's background as Yale law professor…