Taking constitutionalism seriously

J. Peter Mulhern argued on these pages yesterday that presumptively conservative Supreme Court Justices (he cites William Brennan, Harry Blackmun, Lewis Powell, Sandra Day O'Connor, Anthony Kennedy, and David Souter) 'morph into liberals when they ascend to the Supreme Court' because of the persuasive power of liberal constitutional jurisprudence and the corresponding weakness of the textualist—originalist approach favored by Justice Thomas and, most famously, Robert Bork (who is not mentioned in Mr. Mulhern's article).  However, Mr. Mulhern does not provide any examples of these 'leftist theories about what judges should do and how they should do it,' nor demonstrate how these theories 'are better developed and more useful to a judge than their conservative competitors.'  He simply asserts this as true.

The only 'proof' Mr. Mulhern offers is a tendentious reading of Justice Thomas' dissenting opinion in Kelo v. New London, which Mr. Mulhern argues shows the inherent limitations of the textualist—originalist approach to constitutional interpretation.  Even assuming Mr. Mulhern is correct in his analysis of Justice Thomas' opinion in Kelo (my purpose here is not to debate this particular point), this hardly proves the superiority of 'liberal' versus 'conservative' theories of constitutional interpretation.

Although he does not say so explicitly, Mr. Mulhern apparently finds compelling the concept of a 'living Constitution,' which underlies all liberal theories of constitutional interpretation.  As Justice Brennan articulated the concept:  'The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.'  It is this project of 'adapting' constitutional principles 'to cope with current problems and  current needs' that defines contemporary liberal jurisprudence.

For example, Ronald Dworkin (whom Mr. Mulhern cites approvingly in his article) argues that constitutional interpretation is a species of moral reasoning, the aim of which is not to determine and enforce the Constitution's intrinsic meaning (whatever that may be in any particular instance), but to do 'justice.'  See generally Law's Empire (1986).  Consequently, Dworkin, like all liberals, rejects the notion that the Constitution establishes certain fixed parameters within which the nation's political process operates, but otherwise leaves the outcome of that process to the democratic will of the people.  Not surprisingly, he endorses a constitutional right to abortion and affirmative action, among other liberal causes celebre.  The fact that such 'rights' are nowhere to be found in the actual text of the Constitution, or in the Framers' understanding of the Constitution's meaning, is of no moment for Dworkin, who has argued that the Framers 'misunderstood' the meaning of the constitutional language they themselves enacted into law.  See 'The Moral Reading of the Constitution,' New York Review of Books (Mar. 21, 1996) at 49.  

Ultimately for Dworkin, and other liberal theorists, the Constitution's meaning is limited only by the imagination of five Supreme Court Justices.  This is the 'elaborate theory of judging' that Mr. Mulhern argues 'has more intellectual mass' than anything put forward by Robert Bork, Justice Scalia, Justice Thomas, and many other conservative thinkers whose work Mr. Mulhern so casually dismisses.  Yet conservative thinkers are the only people in the contemporary intellectual landscape who take seriously the concept of constitutionalism, that is, the idea that the Constitution embodies a supreme set of legal, political, and, yes, moral commitments made by the citizens of the country, which specifically and objectively define the scope of federal versus state authority, public versus private power, and community versus individual rights.  Thus, where the Constitution speaks to an issue, it represents the final word on the matter.  But where the Constitution is silent or (in academic parlance) 'indeterminate,' the issue is relegated to the democratic political process — unless the citizens of the country decide to amend the Constitution to include this new issue.

Under the textualist—originalist approach, therefore, there is a 'right' answer to constitutional questions that does not depend on the personal value judgments of individual Supreme Court Justices, or the changing 'problems' and 'needs' of society.  For example, under the textualist—originalist approach, even the most libertine judge would be honor bound to conclude that the Constitution, as it presently stands, simply does not address a married couple's right to use contraception.  See Griswold v. Connecticut.  While laws prohibiting such use would be stupid and pernicious, this constitutes a political problem not a constitutional problem.  Although a judge's textual or historical analysis may be flawed in any particular case, this hardly means, as Mr. Mulhern implausibly claims, that the textualist—originalist approach does not represent 'a serious working theory of constitutional adjudication.'      

The contemporary legal battles over such issues as abortion, affirmative action, and gay marriage essentially revolve around efforts by liberal political activists to 'constitutionalize' these issues by convincing courts, especially the Supreme Court, to redefine them as matters of individual rights, instead of issues to be resolved in the political arena — where, not coincidentally, the liberal position is likely to be defeated.  However, the only way to transform these political issues into constitutional 'rights' is by divorcing the 'meaning' of the Constitution from its actual text and history.  This is precisely what liberal legal theorists like Ronald Dworkin propose to do.  The upshot, of course, is that the Constitution becomes an empty vessel into which any five Supreme Court Justices can pour whatever brew they prefer — regardless of what the rest of the country thinks about an issue.  While this power may be irresistibly intoxicating to judges, it is the very antithesis of constitutionalism.  The result is a judicial tyranny every bit as undemocratic and dangerous as the monarchical tyranny that the Founding Fathers rebelled against in 1776.

I wholeheartedly agree with Mr. Mulhern that conservative Supreme Court Justices 'need strong enough minds to resist the pull of the legal left.'  But I strongly disagree that this has anything to do with the Left's 'better legal theories.'  Rather, it is a question of human nature.  The Supreme Court wields enormous power in American society today, and any Justice, liberal or conservative, will be tempted to use that power to promote the interests and causes that he or she prefers (or which bring praise and prestige from the political, media, and academic establishment).  The difference, however, is that liberals endorse a legal philosophy (the 'living Constitution') that justifies such abuses of power, while conservatives endorse a legal philosophy (textualism—originalism) that seeks to restrain such abuses. 

Contrary to Mr. Mulhern's argument, it is only by embracing the textualist—originalist approach that the 'temptation' to legislate from the bench (which is a real problem, not a mere 'political slogan') can be effectively resisted.  Mr. Mulhern may not like the textualist—originalist approach — for reasons he does not adequately explain in his article — but he does not even hint at what an alternative 'conservative' jurisprudence would look like.  Until he does, as a conservative, I will continue to support the textualist—originalist approach to constitutional interpretation.   

Steven M. Warshawsky frequently comments on politics and current affairs from a conservative perspective.  He can be reached at smwarshawsky@hotmail.com.

J. Peter Mulhern argued on these pages yesterday that presumptively conservative Supreme Court Justices (he cites William Brennan, Harry Blackmun, Lewis Powell, Sandra Day O'Connor, Anthony Kennedy, and David Souter) 'morph into liberals when they ascend to the Supreme Court' because of the persuasive power of liberal constitutional jurisprudence and the corresponding weakness of the textualist—originalist approach favored by Justice Thomas and, most famously, Robert Bork (who is not mentioned in Mr. Mulhern's article).  However, Mr. Mulhern does not provide any examples of these 'leftist theories about what judges should do and how they should do it,' nor demonstrate how these theories 'are better developed and more useful to a judge than their conservative competitors.'  He simply asserts this as true.

The only 'proof' Mr. Mulhern offers is a tendentious reading of Justice Thomas' dissenting opinion in Kelo v. New London, which Mr. Mulhern argues shows the inherent limitations of the textualist—originalist approach to constitutional interpretation.  Even assuming Mr. Mulhern is correct in his analysis of Justice Thomas' opinion in Kelo (my purpose here is not to debate this particular point), this hardly proves the superiority of 'liberal' versus 'conservative' theories of constitutional interpretation.

Although he does not say so explicitly, Mr. Mulhern apparently finds compelling the concept of a 'living Constitution,' which underlies all liberal theories of constitutional interpretation.  As Justice Brennan articulated the concept:  'The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.'  It is this project of 'adapting' constitutional principles 'to cope with current problems and  current needs' that defines contemporary liberal jurisprudence.

For example, Ronald Dworkin (whom Mr. Mulhern cites approvingly in his article) argues that constitutional interpretation is a species of moral reasoning, the aim of which is not to determine and enforce the Constitution's intrinsic meaning (whatever that may be in any particular instance), but to do 'justice.'  See generally Law's Empire (1986).  Consequently, Dworkin, like all liberals, rejects the notion that the Constitution establishes certain fixed parameters within which the nation's political process operates, but otherwise leaves the outcome of that process to the democratic will of the people.  Not surprisingly, he endorses a constitutional right to abortion and affirmative action, among other liberal causes celebre.  The fact that such 'rights' are nowhere to be found in the actual text of the Constitution, or in the Framers' understanding of the Constitution's meaning, is of no moment for Dworkin, who has argued that the Framers 'misunderstood' the meaning of the constitutional language they themselves enacted into law.  See 'The Moral Reading of the Constitution,' New York Review of Books (Mar. 21, 1996) at 49.  

Ultimately for Dworkin, and other liberal theorists, the Constitution's meaning is limited only by the imagination of five Supreme Court Justices.  This is the 'elaborate theory of judging' that Mr. Mulhern argues 'has more intellectual mass' than anything put forward by Robert Bork, Justice Scalia, Justice Thomas, and many other conservative thinkers whose work Mr. Mulhern so casually dismisses.  Yet conservative thinkers are the only people in the contemporary intellectual landscape who take seriously the concept of constitutionalism, that is, the idea that the Constitution embodies a supreme set of legal, political, and, yes, moral commitments made by the citizens of the country, which specifically and objectively define the scope of federal versus state authority, public versus private power, and community versus individual rights.  Thus, where the Constitution speaks to an issue, it represents the final word on the matter.  But where the Constitution is silent or (in academic parlance) 'indeterminate,' the issue is relegated to the democratic political process — unless the citizens of the country decide to amend the Constitution to include this new issue.

Under the textualist—originalist approach, therefore, there is a 'right' answer to constitutional questions that does not depend on the personal value judgments of individual Supreme Court Justices, or the changing 'problems' and 'needs' of society.  For example, under the textualist—originalist approach, even the most libertine judge would be honor bound to conclude that the Constitution, as it presently stands, simply does not address a married couple's right to use contraception.  See Griswold v. Connecticut.  While laws prohibiting such use would be stupid and pernicious, this constitutes a political problem not a constitutional problem.  Although a judge's textual or historical analysis may be flawed in any particular case, this hardly means, as Mr. Mulhern implausibly claims, that the textualist—originalist approach does not represent 'a serious working theory of constitutional adjudication.'      

The contemporary legal battles over such issues as abortion, affirmative action, and gay marriage essentially revolve around efforts by liberal political activists to 'constitutionalize' these issues by convincing courts, especially the Supreme Court, to redefine them as matters of individual rights, instead of issues to be resolved in the political arena — where, not coincidentally, the liberal position is likely to be defeated.  However, the only way to transform these political issues into constitutional 'rights' is by divorcing the 'meaning' of the Constitution from its actual text and history.  This is precisely what liberal legal theorists like Ronald Dworkin propose to do.  The upshot, of course, is that the Constitution becomes an empty vessel into which any five Supreme Court Justices can pour whatever brew they prefer — regardless of what the rest of the country thinks about an issue.  While this power may be irresistibly intoxicating to judges, it is the very antithesis of constitutionalism.  The result is a judicial tyranny every bit as undemocratic and dangerous as the monarchical tyranny that the Founding Fathers rebelled against in 1776.

I wholeheartedly agree with Mr. Mulhern that conservative Supreme Court Justices 'need strong enough minds to resist the pull of the legal left.'  But I strongly disagree that this has anything to do with the Left's 'better legal theories.'  Rather, it is a question of human nature.  The Supreme Court wields enormous power in American society today, and any Justice, liberal or conservative, will be tempted to use that power to promote the interests and causes that he or she prefers (or which bring praise and prestige from the political, media, and academic establishment).  The difference, however, is that liberals endorse a legal philosophy (the 'living Constitution') that justifies such abuses of power, while conservatives endorse a legal philosophy (textualism—originalism) that seeks to restrain such abuses. 

Contrary to Mr. Mulhern's argument, it is only by embracing the textualist—originalist approach that the 'temptation' to legislate from the bench (which is a real problem, not a mere 'political slogan') can be effectively resisted.  Mr. Mulhern may not like the textualist—originalist approach — for reasons he does not adequately explain in his article — but he does not even hint at what an alternative 'conservative' jurisprudence would look like.  Until he does, as a conservative, I will continue to support the textualist—originalist approach to constitutional interpretation.   

Steven M. Warshawsky frequently comments on politics and current affairs from a conservative perspective.  He can be reached at smwarshawsky@hotmail.com.