At Law & Liberty, F.H. Buckley: We Can Do Better Than the Framers’ Constitution, From the introduction:
Adrian Vermeule’s recent essay in the Atlantic sketches an alternative to originalism, which today is the dominant theory of constitutional interpretation amongst conservatives and the one associated with the Supreme Court justice after whom my law school is named. 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. For originalism, after all, 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), the English legal philosopher who defined the law as the sovereign’s command backed by force. As a utilitarian, Austin thought that laws might serve the principle of utility or not, that is, they might be good or bad, but in either case they’re still laws if enacted by the King-in-Parliament.
As a form of legal positivism, therefore, it makes no sense to say that courts should follow originalist principles, unless the alternative is expected to make things worse. And that is what originalism comes down to. Its plausibility as a rule that deserves to be followed rests on a rejection of its principal alternative—the left-liberal egalitarianism and libertarianism that informs much of our constitutional law—and an assertion that those are the only choices before us.
And from later on:
Originalism is a radical creed and as such is anything but conservative. Instead, the conservative has a sense of human frailty and distrusts laws cast in stone, including constitutions. The want of reversibility—both of constitutional text and of legislative acts—is indeed the Constitution’s great problem. Our constitutional system operates on the assumption that bad bills will not survive the winnowing they receive through the need for approval by House, Senate, and White House. But that has not saved us from wasteful laws. And in any event, the conservative—apt to prefer ex post reversibility under a parliamentary system to ex ante screening under the separation of powers—will think this an example of Hayek’s fatal conceit. Similarly, the conservative will be unwilling to think that one group of people in 1787 got it exactly right, and that one needn’t attend to what wise jurists since then have added to our understanding of the Constitution. You can be an originalist or a Hayekian, but you can’t be both.
I think this essay fails to appreciate a core foundation of modern of originalism, which is adherence to the rule of law and the ideal of a judiciary (somewhat) free from politics. It's true that originalism is a form of legal positivism and is justified on that ground — but that does not entail a claim that the document given its original meaning is perfect or cannot be improved, or that moral and pragmatic considerations are irrelevant to the choice of how to interpret it. Originalism's claim is instead that the document should be improved through amendment (or, I suppose, wholesale replacement), not that it be "improved" by judges according their own intuitive, fallible and contested sense of the best policy at the moment. Of course, everyone can think of improvements. Professor Buckley has his, Professor Vermeule has his, and the left-liberal legal establishment has theirs. But the question is not whether any of these (or some I could suggest) are better than the founding document. The question is whether constitutional adjudication should be a moral and political free-for-all among these and other competitors, or whether instead adherence to original meaning can provide some degree of settlement that channels changes through the political branches and the people.
But I very much appreciate Professor Buckley (and Professor Vermeule) raising these issues, because they illustrate that originalism's opposition is not (contra Professor Buckley) left-liberal living constitutionalism, but rather it is anybody who wants to use the judiciary to impose their particular moral visions on the rest of us.
Posted at 6:04 AM