I’ve always been highly interested in Constitutional Law and the Supreme Court, stretching back to when I was your run of the mill libertarian leaning conservative advocate of “Originalism”. Now, I have exactly zero formal education in law, so read the rest of this with that in mind.
Being an intellectually curious conservative, I read quite a lot about, and became pretty well versed in the various arguments the right presented to make their case for Originalism (for example, you must rely on the intent of the lawmakers at the time the law was passed to guide your decisions, or – even further – you must rely on exactly what the text of law says and nothing beyond that when deciding cases). Beyond being well versed in it, I was also very much an advocate of this type of thinking. To give one example, despite being pro-choice, I was very much an advocate of repealing Row v Wade on the grounds that the Supreme Court had to essentially make up a right to privacy to give women the right to an abortion. Never mind the fact that to do so would be an egregious violation of a woman’s individual right to her life, a right to privacy just isn’t there. I’d always follow up my discussions with people on this with the statement that I believed, once it was overturned, everyone should fight in every state to keep abortion legal, but the states should be the ones to decide.
I started thinking about this subject again recently after reading this post over on The Volokh Conspiracy about the state of the various Conservative and Liberal judicial theories.
If you look at the big constitutional issues facing the Supreme Court – federalism, property rights, criminal defendants’ rights, the death penalty, executive power in wartime, abortion, campaign finance – there is very little disagreement among liberal scholars about the question of what the Court should do; though there is some divergence about how fast the courts should go in getting from here to there.
On the other hand, there is a great deal of debate about the theoretical reasons justifying these preferred results. Big-name liberal constitutional law scholars range from originalists like Akhil Amar, to Bruce Ackerman’s “constitutional moment” approach, to “living Constitution” theories of various type (e.g. – Laurence Tribe), to representation-reinforcement theories (e.g. – the late John Hart Ely and those who have build on his ideas), to “judicial minimalism” (Cass Sunstein), and several other theories I won’t go through here…
The state of affairs on the right is almost exactly the reverse of that on the left. With rare exceptions, most conservative and libertarian constitutional theorists are originalists. Nowadays, most of them even agree that original meaning originalism is preferable to original intent. Despite this near-consensus on theory, there is enormous disagreement about its application to particular cases. Right of center originalists range from co-blogger Randy Barnett – who would urge judicial invalidation of a wide range of federal and state laws – to Robert Bork and Lino Graglia, who argue for near-total deference to the political branches.
I found this piece of insight absolutely fascinating, and very revealing. Liberals all know exactly what the Constitution should mean, they just can’t agree on how they should find rights in the Constitution that aren’t there. Conservatives, on the other hand, lack any type of unifying ideology on what the proper constitutional role of government should be, but they are all in agreement about how to argue against liberal overreach. They simply say, “But that’s not what the text says!” Nevermind the fact that the Constitution is written in some fairly broad and sweeping language. They’ll page through the Constitution all day long and won’t find one single mention of gay marriage, and declare that the Constitution can’t provide the right for homosexuals to marry because it simply isn’t in the text. They’ll do this while completely ignoring the Equal Protection Clause of the 14th amendment that assures ALL individuals of equal protection under the law.
One of the things I was very interested in studying as I began to delve deeper into Objectivism was what the proper approach to Constitutional Law should be. I’m not so much interested in what objective law under a properly constrained government should look like, but how should one evaluate current laws and Supreme Court decisions. Should abortion really be left up to the states because there isn’t a right to privacy? Should states be able to place all sorts of silly regulations on what may be done by consenting adults in their bedroom because there’s nothing in the Constitution that specifically forbids states from doing so? Must you rely on Originalism as a defense against the Liberal idea that you start with results and then cleverly craft a way to justify it in the Constitution? Is there another way?
As I went looking for these answers, I discovered that this was an area in Objectivism where there isn’t a wide range of readily available material to delve into. There are lots of articles and essays out there about what the proper role of government and law should be, but not as many on how today’s judges should approach the law. Over the years, however, I was able to find two extremely relevant and brilliant pieces on the subject that served to clarify my views on these issues. The first is Tara Smith’s critique of Originalism in the Duke Journal of Constitutional Law and Public Policy entitled “Why Originalism Won’t Die — Common Mistakes in Competing Theories of Judicial Interpretation“. The second is an article in this summer’s issue of The Objective Standard by Thomas Bowden titled “Justice Holmes and the Empty Constitution“. Both pieces are quite lengthy, and build, from the ground up both a truly damning case against both Originalism and the competing theories on the left, as well as a fully integrated and coherent judicial philosophy with reason and objectivity at it’s base. Because both articles are so tightly integrated, it’s tough to excerpt from them meaningfully. You really need to read the entire articles to get the full sense of their arguments, and I highly encourage anyone who’s interested in this topic to do just that. I will, however, quote Dr. Smith’s broad overview on what is required by an objective judge as a way to begin to define what a proper approach should be.
In order to be objective, a judge must be philosophical and conceptual.
No particular provision of law can be interpreted apart from philosophy — the philosophy of the legal system of which it is a part. For a law is not a free-standing, self-sufficient decree; it comes into being in order to do a job, and it gains its authority as a means of serving the larger purpose for which a government exists. Correlatively, no law can be wrenched from that context and understood apart from it.
With these two paragraphs, one can begin to see what the correct underpinnings to a judicial philosophy should be. Rather than using the text as a starting point for interpretting the law, you must delve deeper into what the underlying foundation of a particular law’s government is built upon. Here in the United States, we are particularly lucky to have two very explicit documents which lay out the ideas upon which our government was founded: the Declaration of Independence and the Preamble to the Constitution. For those of you who failed 3rd grade social studies, I’ll quote them for you.
From the Declaration:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
And from the Preamble:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
In short, the Constitution of the United States of America has been established to secure the inalienable individual rights of all men, including life, liberty and property. All laws of this country should serve to advance this protection of individual rights, and those laws which impede on the rights of individuals should be overturned. Thus – it matters not that there is no explicit law which allows homosexuals to be married. That right is implicit in the very individual rights to liberty and the pursuit of happiness that lie at the heart of our country, and to deny people this right is to destroy the protection of their individual rights.
Unfortunately, as Bowden points out in “Justice Holmes and the Empty Constitution”, this view of jurisprudence has, in the face of all evidence, been rejected by the Supreme Court for over a century. The view that has now taken hold, first enumerated in Justice Holmes’ dissent in Lochner v. New York is that the Constitution is “Empty” of any meaning beyond the words written within it, with no underlying premise of individual liberty.
In order to take this view, Holmes had to,
evade large swaths of evidence tending to show that the Constitution indeed embodies a substantive commitment to individual liberty. In the Declaration of Independence, the Founders clearly stated their intent to create a government with a single purpose—the protection of individual rights to life, liberty, and the pursuit of happiness. Consistent with the Constitution’s Preamble, which declares a desire to “secure the blessings of liberty to ourselves and our posterity,” every clause in the Bill of Rights imposes a strict limit on government’s power over individual liberty and property. In addition, Article I forbids the states to pass any law “impairing the obligation of contracts.” And to prevent future generations from interpreting such clauses as an exhaustive list, the Ninth Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
This view is precisely why we have the current debate between the left and the right regarding the proper role of the judiciary. Because both sides accept the legitimacy of the Empty Constitution premise, the right argues for fealty to the text of the law and Constitution as a means to properly constrain the role of government and the left realizes that if the Constitution is not built upon a foundation of individual rights, then they are free to decide the law means whatever they want it to mean.
To restore our government to it’s legitimate purposes, the Empty Constitution premise, and the Originalism of the right and Subjectivity of the left which arose from it, must all be rejected. We must again place the protection of individual rights at the foundation of our government and evaluate all laws in that, proper, context.
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