Delusional Originalists Against Trump

By | 2017-06-02T18:30:05+00:00 October 27, 2016|
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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 historyto the point that merely reciting the calendar date constitutes a knock-down argumentthe 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.

About the Author:

Jesse Merriam
Jesse Merriam is an assistant professor at Loyola University. He holds an M.A. and Ph.D. from Johns Hopkins University and a J.D. from The George Washington University Law School.
  • jack dobson

    The greatest delusion is that the constitution isn’t long dead. We are post-/extra-constitutional. Rule of Law ended (officially; it had been intubated for at least thirty years) when the FBI director announced he failed to find “intent”–which wasn’t even the required mens rea–when the Dear Leader of these Libertarian “scholars” committed numerous felonies. Not content just to formalize the death of the Rule of Law, the FBI director went on to end Equality of Law and wagged his finger at the American people and told them “you can’t get away with it.”

    Now at some level these Libertarian “legal scholars” eventually will be proved right. When the cultural Marxists fully transform the constitution into an instrument of total human oppression they will declare the zombie very much alive. No doubt the Libertarian Step-‘n-Fetchits will say “told you so.”

    The constitution can’t be ghost danced back to life. While cool heads still prevail, we need to develop a new governing instrument and arrangement among the states and between them and a centralized albeit emasculated government. The other option is a horror far beyond the comprehension of fifty people who think Trump is a greater threat to freedom and civil liberties than Clinton.

  • Guy

    And you wonder why the universities are doing such a poor job of teaching and inculcating the young people of this country. These same professors who don’t have a lick of common sense, who would probably starve surrounded in a garden of plenty purport to tell us how great they are because they oppose Trump. These people don’t see danger where it really lies and if they have their way, will pay the price just like every body else. Anti-Trump means voting against your best interests. The fact of the matter is, these pinheads are continuously exposing themselves for the elitists they are. The closer we get to the election, the more open they are about their snobbery. And that is a good thing. Know your enemy.

  • JJ the Irredeemable

    What a joke. Clinton has broken hundreds of laws and thousands of regulations. She will appoint Constitutional Demolitionists to encroach on every single right we have, from speech to press to voting to assembly. She will seek to destroy the second amendment and has already indicated so.

    This is some sort of nightmarish sick joke.

    We have already shifted from a post-modern philosophy to a post-truth and post-moral philosophy.

    It is now might makes right. There is no rule of law.

  • JVDeLong

    This is a fine piece. I have two suggestions for a follow-up, though:

    1) I would like to see Prof. Merriam’s further thoughts on how such a distinguished group (and the signers are indeed a roster of impressive names) can be so divorced from political realities. For a relevant piece on conservative intellectuals generally, see the always-educational Richard Fernandez at https://pjmedia.com/richardfernandez/2016/10/26/the-conservatives-at-the-castle-walls/

    2) Perhaps the most important Rule of Law issue of our time is the rampant Administrative State, and Originalism has been largely absent from any effort to check it (except for Justice Thomas). The sainted Scalia was myopic on this issue, and wrote important opinions and articles endorsing the power of an agency to determine the scope of its own authority, to make binding determinations of facts, and to pick and choose among scientific principles, including junk science, in support of its preferred outcomes. He began to have second thoughts near the end of his career, but too late. http://www.forbes.com/sites/jvdelong/2016/10/21/originalist-sin/#5e57cb333c3b

  • James Finnegan

    I agree with most of this article. Two caveats:
    – Merriam doesn’t even mention the Federalist Society and what influence it might have. Maybe he would dismiss it as a marginal organization, but he should have done so explicitly. It would also be interesting to see how many of the “Originalists Against Trump” signatories are Society members.
    – Merriam mentions “corporate rights,” almost in passing, as an example of how supposed originalists actually ignore the original understanding of the Constitution. Does he then disagree with Justice Scalia’s opinion in the Citizens United case? I found that opinion to be a model of originalist reasoning. To paraphrase, the issue isn’t so much whether corporations have rights per se; the issue is, how should the law protect the Constitutional rights of individuals when they choose to exercise those rights by associating together in a corporate form? I don’t see how any originalist can simply dismiss the idea of “corporate rights.” Does that mean that individuals have a Fifth Amendment right to own property, but if they pool their ownership together into a corporation, the government may then seize that property without due process of law? Does it mean that corporate offices have no Fourth Amendment protection against warrantless search and seizure? If Merriam wants to argue against the principle expressed in Citizens United, he should do so explicitly, rather than simply listing “corporate rights” as a supposed betrayal of originalism.

    • Jesse Merriam

      I usually don’t respond to particular comments but I found these excellent points worth clarifying.

      1) I did not mention the Federalist Society in this article, given that the Federalist Society does not directly relate to the “originalist scholars against Trump” statement. Some of the signatories are members; some are not. I would never dismiss the Federalist Society as a marginal organization; it has played an instrumental role in the legal conservative movement. I discuss the role of the Society in some detail in my other AG article, but I am currently writing a book that will explore its contributions in much greater depth.

      2) In mentioning “corporate rights,” I did not intend to defend or criticize Citizens United, either as an exemplar of originalist reasoning or as a matter of free speech law. But I did want to draw attention to the fact that many conservatives have defended Citizens United with non-originalist reasons and the opposing side has used many originalist arguments against Citizens United (see some of the amicus briefs). Like many issues of constitutional law, I don’t think that originalism, as a theory of law, can or will resolve these disagreements.

      • JVDeLong

        Trump, in his list of possible judicial appointments, credits the Federalist Society and the Heritage Foundation for their help.

  • vdorta

    This is a revolutionary moment never before seen in the USA since our founding. It is revolutionary in every way: masks fall, reality surpasses fiction, the mighty fall, the low ascend, the people recognize their own force and begin using it. And of course the amanuenses (please don’t call them intellectuals) uncover themselves as the “servi a manu” they are.

  • Severn

    This country is ruled by a Uniparty which encompasses most of what is thought of as “the right” as well as what is thought of as “the left”. The Uniparty simply co-opts any organization which it thinks might pose a threat to it. Such a fate has befallen the majority of the “Official Conservative Movement”. Case in point …

    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.

  • Severn

    Trump’s long record of statements and conduct, in his campaign and in
    his business career, have shown him indifferent or hostile to the
    Constitution’s basic features—including a government of limited powers,
    an independent judiciary, religious liberty, freedom of speech, and due
    process of law.

    That’s a bizarre assertion, and one which they make zero effort to substantiate. But even if we assume the charge has some substance, do these “experts” really mean to tell us that Hillary Clinton has shown a commitment to “a government of limited powers, an independent judiciary, religious liberty, freedom of speech, and due
    process of law”? The woman’s our own Eva Person.

  • David Frisk

    Excellent essay. Devastating.

    • Carl Eric Scott

      With respect, David, hardly.

      Merriam pokes plenty of holes in what I would call “originalism happy talk.” This is the talk that is pulled out to celebrate Scalia’s legacy and influence, and is a nice and polite enough thing as far as it serves that purpose, but Merriam is right to point the signs that the very tag “orginalism” is being co-opted, and that the lion’s share of the actual battles for Court Doctrine go the anti-originalist way. And of course, the very best argument reasonable (“lesser evil”) Trumpers have for voting Donald is the comparison with what the two will do with respect to the Court. I think that argument can be met, and have done so elsewhere (my “Donald Trump, the Greater Evil”), but it is a tough to do so, no doubt. And finally, I appreciate Merriam’s high standards for originalism–I cannot agree with him about Alito, but I like his implicit resistance against libertarian scholars like Richard Epstein and Randy Barnett claiming the “originalism” tag. So far, so good.

      But, anyone who tells us that “The unavoidable fact is that by the end of Clinton’s term the nation will have so dramatically changed that…” should not be taken entirely seriously. Predictions about the state of things, likely within a mere four years, made with so much confidence as to be labelled “fact”? Facts that only the “delusional” might question?

      • Jesse Merriam

        I appreciate the comments, but with all due respect, I encourage you to consider the Court’s current composition along with Clinton’s immigration reform proposal and the changing electoral map. I stand by my claim that it is delusional to think that conservatives will ever have a majority-conservative Supreme Court, let alone a majority-originalist Court, after Clinton’s tenure.

      • David Frisk

        Carl — I think that point is really a quibble. A valid one, but not enough to counter my judgment that Merriam’s piece is “excellent” and “devastating.” The possibility that Clinton will change the nation very dangerously in these respects is an extremely strong one. That we can’t be completely certain of this, and can’t know just how far it will go, isn’t especially important.

      • Severn

        Still whistling past the graveyard I see. Of course the fact – and I use the word correctly – is that NRO style “conservatism” is entirely consistent with Clinton-style globalist progressivism, But for all the real conservatives in the country it’s inescapably true that several more years of leftist rule, on top of eight years of Obama (and eight years of Bush), will result in a country where it is pointless to even speculate about a future conservative renaissance.

        • David Frisk

          “NRO style ‘conservatism’ ” is not “consistent with Clinton-style globalist progressivism.” But several more years of leftist rule may well destroy us, as you suggest.

  • David Frisk

    She’s extremely dangerous, despite Carl Scott’s point that we can’t know exactly how dangerous she will be.

  • I went to the The Jurisprudence of Clarence Thomas: 25 Years on the Court last week, hosted by Claremont Institute and Federalist Society. I am glad to see that none of the eight panelists are on the list.

    Elizabeth Wydra was the there calling herself a “progressive originalist,” but she doesn’t put that in her bio nor did she sign the letter. But then the other panelists mocked the term (not her, the term), and I suspect she was just manipulating language anyway, like all progressives do.

  • Joan Mounteer

    Election of Clinton will be a defacto abolition of our Constitution. The judges she would appoint have contempt for originalism. And too many ignorant people who vote think the Constitution is an outdated document irrelevant to our times.

  • billsv

    This is more that dilussional it defies logic

  • HobbyFlyer

    Those are some sick puppies there.

  • Hosana Rosanadana

    Outstanding article! Now if we could get the study of the Constitution put back in our schools along with Civics, Americanism vs. Communism, Shop, PE, Recess with games, the Lord’s prayer and the pledge of allegiance, paddling, cursive writing, and teachers who are not activists and do their own work instead of relying on assistants, the garbage scow that we refer to as out “education system” just might be useful once again to learn some sense into the spawn of the swimming in the sewer filled classrooms across America.