At Law & Liberty, Bradley Rebeiro (BYU): Redeeming the Constitution. From the core of the argument:
… Is there a way to rescue the original meaning of the Constitution but maintain the integrity of the judge’s role to say what the law is, rather than what it should be? If the “better” originalism is imprudent, and the “correct” originalism only serves to remind us of our dark past and draw into question whether the original understanding is worthy of our loyalty and respect, perhaps originalism should simply be done away with. Or perhaps not.
Indeed, it may be prudent for us to look for a “better” originalism and, luckily for us, confronting our past may still teach us valuable lessons for the present. Our current crisis of identity is not unlike that of the antebellum period. As the nation struggled over its identity (a struggle which eventually led to Civil War), the Constitution laid at the center of the debates. Was the Constitution pro-slavery or anti-slavery?
… Constitutional abolitionists sought to wrest the Constitution from the grasp of the “Slave Power” by interpreting it as an anti-slavery document. These abolitionists, including Lysander Spooner, Gerrit Smith, and Frederick Douglass, understood the Constitution as an instantiation of the Declaration of Independence, that its original purpose was to establish freedom for all. “We the people” did not mean “We the [white] people” or “We the [white male] people,” but all persons naturally born or naturalized into the Union. The Union suffered from improper administration, not improper principles. The Garrisonians and pro-slavery defenders were doing the Constitution a disservice by associating it with the perpetuation of slavery. Rather, in the famous words of Frederick Douglass, the Constitution was “a glorious liberty document.”
These abolitionists interpreted the Constitution somewhat similar to how originalists do today. They looked to the plain meaning of the words of the document at the time of adoption. When searching for that meaning, rather than argue what the Framers intended to accomplish, they often made arguments based on how the public understood the Constitution. … [They] recognized that the positive law (in this case the Constitution) was binding. However, its binding nature only subsisted so long as it was in harmony with the natural law. Thus, when interpreting the positive law, these abolitionists emphasized natural rights in their methods. As they sought the plain meaning of words, they did so with an eye specifically to the Constitution’s purpose: to protect the natural rights of all persons. They therefore reconciled the Constitution’s many provisions with an anti-slavery agenda that would bring about gradual abolition.
And in conclusion:
However, looking to the past and how constitutional abolitionists met the problem of slavery and the Constitution challenges us to reconsider how we understand this tension between originalism and natural law theory to see if there remains a better way to reconcile the two. What is more, it shows us that there can be a time when taking more seriously natural law principles over mere positivism can indeed be the prudent thing to do. Constitutional abolitionists understood that respecting positive law did not mean that they disregard the natural law in the way they interpreted the Constitution; nor did natural law require them to disregard the people who adopted the Constitution. But natural law did require them to understand the original meaning in a particular way—it guided them to reconcile that meaning, as much as possible (and at times quite creatively), with natural rights.
There could be a method that has both the reliability of originalism and the moral authority of the natural law. Indeed, we need a method that can reconcile the Constitution with natural rights. Originalism as it is practiced now likely would not have been equal to the task in the antebellum period, and it may not be equal to today’s challenges. The Constitution can only demand our respect and loyalty if it adequately reflects the natural law and thereby protects our natural rights. Originalism has great appeal given its rigorous methodology, but it lacks a certain moral quality that can redeem the Constitution’s soul. [Hadley] Arkes and company have importantly challenged originalism in what feels like a watershed moment in our nation’s constitutional history. Indeed, they have already done much in an attempt to carve out a new path. Perhaps more will contribute efforts to answering whether we can truly find a “better” originalism. Perhaps that effort will generate a robust theory of interpretation, much like originalism has in the past four decades. For now, constitutional abolitionists provide a sketch of how we can understand the Constitution and its provisions in a way that demands our loyalty but also respects all elements of law, natural, positive, and prudential.
RELATED: In the Wall Street Journal, a counterpoint from and The Temptation of Judging for ‘Common Good’. From the conclusion:
As with liberal talk about the “living Constitution,” the high-minded rhetoric [of common good originalism] conceals an assertion of unbridled power. Liberals, [they] justly complain, rack up victories because they are unabashed about enforcing their own moral purposes. That’s “a form of tyranny,” to which they urge conservatives to respond in kind by remaining cognizant of results and not splitting hairs (and votes) over arcane matters of legal interpretation.
That is a far cry from originalism, the interpretive philosophy Justice Antonin Scalia championed. Scalia looked to the plain meaning of the words in the Constitution at the time they were enacted. He also championed textualism, which applies the same approach to statutory interpretation. The common gooders, by contrast, would put a thumb on the scale (or, when necessary, a brick) to reach what they believe are conservative ends. They say that anything less is “morally neutered.”
But originalism and textualism defer to the morality wrought in the law by those who enacted it. The duty of a judge in a system of self-government is to exercise “neither Force nor Will, but merely judgment,” Alexander Hamilton wrote in Federalist No. 78. Or as Scalia put it in his dissent from Planned Parenthood v. Casey (1992), “Value judgments . . . should be voted on, not dictated.”
The Constitution doesn’t codify the common good, let alone appoint judges as its inquisitors. The Framers, as students of history, understood that mankind is fallible and that a government powerful enough to prescribe moral truth could achieve only tyranny. Rather than put their faith in the beneficence of statesmen, they established a structure that pits faction against faction to “secure the blessings of liberty,” as the preamble puts it. James Madison thought self-government “presupposes” public virtue, which can’t be dictated, only sown in the soil of freedom.
(Thanks to Andrew Hyman for the pointer.)
Posted at 6:30 AM