More than 50 originalist legal scholars and practitioners recently earned praise from the Left in signing a statement supporting Hillary Clinton over Donald Trump. These “originalists” insist they “are under no illusions” about Clinton’s hostility to their preferred mode of constitutional interpretation. Nevertheless, contra my diagnosis, they are confident originalism remains alive and well, and certainly sturdy enough to withstand her presidency. Indeed, they proclaim, “our country’s commitment to its Constitution is not so fragile that it can be undone by a single administration or a single court.” Originalism will therefore survive her presidency.
“Originalism has faced setbacks before,” they solemnly declare, but “it has recovered.”
These are, by and large, brilliant legal scholars, but the fault in their reasoning lies not in their understanding of law but their assessment of political realities. These scholars see a polity with a strong commitment to originalism and thus imagine a world in which they can revive that commitment after Clinton’s tenure, whether that is in 2020 or 2024. To present that as a serious picture of American law and politics reveals the extent to which these scholars are not only under an illusion (a false perception) but a delusion (a belief in a fantasy world that is directly contravened by all available data). To illustrate just how delusional their position is, let us unpack their statement.
Delusion No. 1: “Our country’s commitment to the Constitution is not . . . fragile.”
For a group that has devoted considerable ink to bemoaning the excesses of the Obama Administration—from its abuses of executive discretion in ignoring clear statutory commands, its machinations in passing the Affordable Care Act, and its efforts to use federal funding to transform community demographics and public school potty usage—these Never Trump scholars now have an impressively optimistic view of the nation’s constitutional commitments.
That “We the People” are committed to the Constitution, as an abstract symbol of national identity, is indisputable. But that we are truly committed to the original meaning of that document, despite having departed from that meaning for over 100 years, verges on laughable.
Delusion No. 2: Our constitutional commitment cannot “be undone by a single administration or a single court.”
This is simply ahistorical. Whether “the switch in time” of 1937 was due to the reelection of Franklin D. Roosevelt in 1936, or more particularly to FDR’s court-packing plan, it is clear that this FDR-led switch in judicial philosophy transformed the scope of federal power under the Commerce Clause. The same is true for Lyndon Johnson and the Warren Court: Constitutional law simply does not look the same after the passage of a series of Great Society statutes that essentially “ate the Constitution.”
In any event, even if there were some truth to this claim in an ordinary election, it is clearly not true in a Flight 93 election, where the frailty of our constitutional fidelity, combined with the imminent transformation of the nation, might very well mean the upending of our entire constitutional order. Indeed, if there are any doubts about this, just read Mark Tushnet’s post on a widely read law blog preparing the Left’s transition to a more aggressive posture under the Clinton Administration.
The unavoidable fact is that by the end of Clinton’s term the nation will have so dramatically changed that it will not be possible to return to a conservative court, let alone to create a majority-originalist one—something we were not close to having even after the seven justices appointed by Reagan, Bush I, and Bush II. The Never Trump scholars simply do not explain how, given our political realities, they imagine this originalism revolution occurring.
What is particularly delusional—and strikingly inconsistent—about this claim is the notion that our country’s commitment to originalism is sufficiently strong to withstand a Clinton presidency (even though her victory would guarantee that at least three-quarters of the federal judiciary would have been appointed by Democratic presidents and the Supreme Court would likely not feature a single originalist by the end of her term), but not sufficiently strong to withstand Donald Trump (even though he has taken the unprecedented step of seeking to ingratiate himself with these very scholars by providing an exhaustive list of potential Supreme Court justices and by consistently explaining his constitutional vision in originalist terms).
The concerns about executive overreach under Trump are certainly warranted, but it is inconceivable that Trump would be able to reach any further than Clinton, when she would face nearly no resistance against her progressive-corporatist-globalist agenda, whereas Trump would have to overcome the power of the media, entertainment, and academic industries so firmly set against him, not to mention a significant segment of his own party.
Delusion No. 3: “Originalism has faced setbacks before [and] it has recovered.”
It is hard to characterize a movement as having faced “setbacks” when it has never really gotten off the ground. That is like saying that the National Bowling League, a professional bowling league that existed from 1960 to 1962, is merely facing a setback. Originalism’s fate is like that of the Thunderbowl Arena, originally built as an NBL stadium on the promise of an emerging national sport, but now serving as an entertainment venue, replete with a bar, arcade, and pro-wrestling.
Originalism was a promising theory of law when legal giants like Robert Bork and Antonin Scalia first developed it in the early 1980s. But after failing to reverse the progressive course set by the Warren Court, and instead providing the basis for endless academic squabbles between the Left and Center-Right over the differences among “original intent” originalism, “original meaning” originalism, and “original expected applications” originalism, originalism has become more like pro-wrestling—fake, unctuous, and inconsequential—than a nationally respected enterprise.
The Reality: Almost no constitutional doctrine has been influenced at all by originalism. Not the First Amendment’s guarantees of free speech, free exercise of religion, and religious disestablishment. Not the Eighth Amendment prohibition of cruel and unusual punishment. Not the 14th Amendment’s guarantees of due process and equal protection. Its greatest influence has been on some criminal procedural cases (which are in real danger of reversal) and the two Second Amendment cases (which are in similar danger, a fact that leads a real-world organization like the NRA to view this election’s stakes rather differently from the Never Trump scholars).
But beyond that, the vast preponderance of constitutional law—the law that students learn in law school, the law that lawyers argue in courts, and the law that judges use to decide cases—has absolutely nothing to do with following the original meaning of the Constitution.
This should not come as a surprise, given that it has been 25 years since a single originalist has been appointed to the Supreme Court. Moreover, originalism has never commanded more than two justices (Scalia and Clarence Thomas) on the Supreme Court. Even if we take these two originalist justices (one of whom is dead) as sufficient success for originalism, to say that it is experiencing a mere “setback” and that it stands to recover is pure delusion—especially after Justice Thomas departs.
Not only is originalism dying on the bench, it is barely alive in academia—which is amazing when you consider it has a greater chance of flourishing in an environment with lower expectations for practical relevance. And where originalism is taking its last gasps in the academy, it is in a form that is nearly indistinguishable from the activism of the Left. Indeed, there are now so many variations on originalism that it’s possible to encounter liberal originalists, multicultural originalists, and so on.
Much harder to find are the original originalists. What we have instead are college student libertarian “originalists,” pushing the nation into Gomorrah with their preoccupation with the overreach of federal narcotics laws while ignoring the federal destruction of local civic institutions.
Many of the anti-Trump originalists have supported progressive causes such as the judicial creation of same-sex marriage, as well as aggressive foreign intervention, open borders,and corporate rights—oftentimes ignoring the supposedly sacred original meaning of the Constitution in the process.
To take just one issue at the heart of Trump’s campaign, some of the anti-Trump originalists have defended open borders on the ground that
the U.S. has never had ethnic-based immigration restrictions, it’s not who we are, the Chamber of Commerce says so, the Statute of Liberty says so, it’s the current year, Article I does not explicitly grant Congress the authority to restrict immigration.
This has earned “attaboys” from the Left (and I use “boy” descriptively; only a few women joined the statement), with many liberals praising these “good conservatives” for falling in line in condemning Trump. While law school faculties remain over 95 percent left-wing, the few non-progressive academics permitted entry to this elite caste are overwhelmingly the safe, moderate libertarians. These select few are bestowed the exotic status of being “the crazy conservative on campus,” satisfying the progressive quota of knowing at least one non-progressive, while the socially conservative intelligentsia are ostracized and kept in academic ghettos.
So long as these token libertarians do not challenge progressive orthodoxy, they are lavished with praise, allowing academic and political elites to ignore the nation’s growing societal fractures, while the Left and Center-Right debate whether school vouchers or charter schools are the best ways to fix urban education.
So the “originalists against Trump” statement is about much more than originalism as a constitutional philosophy or Trump as a presidential candidate. It is about a movement that has fallen out of step with the purpose of law and what makes actual human beings conservative. In a culture obsessed with being on the right side of history—to the point that merely reciting the calendar date constitutes a knock-down argument—the law is increasingly seen only as an agent of social transformation, diminishing what had been the law’s stabilizing value in conserving what is essential about a nation and a people.
Due to this growing gap in legal conservatism between theory and praxis, some of the list signatories occupy a world in which it makes sense to argue that Chief Justice John Roberts’s reasoning in the Affordable Care Act case is responsible for “creating” Trump—as though Roberts’s dubious interpretation of the individual mandate as a tax rather than as a regulation so dismayed the Republican electorate that voters are abandoning the rule of law in favor of Trump.
That’s right: The same legal conservative movement that vetted and vouched for Roberts blames him for doing exactly what he promised to do in his confirmation hearings—to practice judicial modesty and seek consensus. No, the conservative elites are telling us, it is not our schools that no longer teach, our communities that no longer function, or our jobs that no longer exist. It is Roberts’s shoddy reasoning that is leading Republican voters to abandon legal conservatism.
Talk about delusional! I have never heard a Trump supporter express outrage at the doctrinal mess wrought by the Supreme Court interpreting a penalty enforced by the IRS as a tax and not as a regulation. But I have heard a diffuse frustration with the entire conservative movement for prattling on about the importance of Supreme Court appointments, and then delivering the likes of David Souter, Anthony Kennedy, and Sandra Day O’Connor; for using cheap “freedom fries” patriotism to appeal to blue-collar workers, while at the same time empowering global corporations to destroy their communities.
The legal conservative movement would be well advised to listen to what actually agitates voters, rather than projecting their own grievances onto them. For the legal conservative movement to save itself, and to save us all from another Donald Trump, we must get away from shadow-boxing each other in an empty arena and turn our attention toward the people who actually matter.