The great reactionary, Count Joseph de Maistre, famously observed that all real constitutions are unwritten. When it comes to the true make-up of a country, “That which is most essential, most intrinsically constitutional, and truly fundamental, is never written, and could not be, without endangering the state.” Far from being the product of philosophizers and rationalists, the “fundamental principles of political constitutions exist before all written law.”
De Maistre wrote primarily in opposition to constitution-mongerers in his native France, but of course his observations pertain to America as well. With perhaps the exception of the Israelites, no nation has ever been so clearly tied with a written documents as has America. Our brief, long-lived, and rarely (formally) amended Constitution is near the forefront of American consciousness. It is the reason a Trotskyite like Christopher Hitchens could class the United States (alongside the Soviet Union) as a state built upon ideology. To the liberal imagination, America is the vaunted empire of “laws and not men;” for both friend and foe—for better or worse—America is synonymous with her written Constitution.
But clearly this is too simplistic. After all, the most fundamental question about the Federal Constitution at the time of ratification was nowhere answered in the document itself, namely: Was the Constitution a compact between sovereign states, or did these states resign their sovereignty upon joining the Union? If the former, then the constituent states had the right to secede; if the latter, then such acts were rebellion, and could be crushed. This question was never definitively answered, neither by Publius nor its ratifiers nor subsequent generations. It was only Abraham Lincoln and the blood of 650 thousand men that “settled” the question in favor of centralization. This most basic question about our Constitution—the constitution of our Constitution, if you will—has never been seriously disputed since.
I bring up this example because, for all the years I have spent among legal scholars and right-of-center attorneys, I have never met anyone I would call a pure originalist. Maybe this is peculiar to me—the great Alexander Stephens ruined me for anything besides the state sovereignty school of the old republic, however well Lincoln, Grant, and Sherman laid it into the grave. The states were recognized as individual sovereignties in the Articles of Confederation, and nothing in the Constitution of 1787 changed this. If I were to give my own originalist purity test, I might very well find myself sitting alone.
Let’s try a more modern example: The Bill of Rights (c. 1791) applied only against the Federal Congress. Were it otherwise, Massachusetts and Connecticut would not have ratified the amendments, for this would have meant destroying their established churches. No, in the original, the First Amendment was a guarantee of these established churches’ right to exist: Massachusetts could have its Congregationalist church and the Feds could not say otherwise (the Bay State indeed retained its established church until 1833). It was not until the 20th Century that the First Amendment was turned on its head and became a cudgel against the states, a limitation on states’ rights in favor of the Court-created “wall of separation.” This is the specious process of “incorporation” which made nine lawyers the final arbiters of our most cherished rights.
I challenge any lawyer or layman who is not a credentialed “expert” on the Fourteenth Amendment to read that vaunted amendment and tell me what words exactly effect the greatest silent coup in history. No one who is unversed in the lies and prevarications of the 20th Century courts can do it. As Raoul Berger showed beyond a shadow of a doubt, the Fourteenth Amendment did not radically shift all rights into the hands of the Federal Supreme Court; it simply never would have been ratified if this had been the case. The Fourteenth Amendment’s purpose was to etch into the Constitution the Civil Rights Act of 1866, which infringed upon the rights of the states, but did not completely upend the constitutional order. And yet here we are in 2020 and our “First Amendment freedoms” are practically synonymous with American liberty.
But yet again, I have never met a conservative who would go back to the pre-Progressive Era, where states were unencumbered by the First Amendment when setting up speech and worship regulations. In the still-extant text of the Constitution, there is nothing textually preventing California, New York, or Massachusetts from abridging free (read: conservative) speech. But any conservative who wants this must have brain damage. California is already a banana republic; the Constitution as-written would allow California to keep their residents from saying so, and perhaps disarm them for good measure!
I bring up these examples to show that the doctrine of “originalism” is already a compromised concept. Even the wonderful Antonin Scalia would never have returned to the actual 1787 Constitution. His originalism was in effect a modern thing; though backwards looking, it could only ever look back so far. We may have our legal and historical ideals, our own personal purity tests, but for all this a genuine conservatism must remain humane, and to be humane in government requires pragmatism.
I bring up these qualifications, too, because originalism, for all its inconsistencies, is well worth defending, and must be defended. When viewed as it actually exists, it is not a kowtowing to classical liberal platitudes, but a masculine system best suited for confronting the problems decent, Christian people face in the modern day. For this reason, even those Rightists who deprecate it as a figment of the past, a dustworn archaism, cannot deny its power, or the role it must play if we are to have any hope of salvaging our battered and decaying nation. It is not an ideology nor a paper doctrine which can be compared against other legal hokum. Properly understood, originalism is the American constitution itself.
As I noted above, the idea of any pure originalism is impossible, and any attempt to tie it to a precise definition may up in more dispute than agreement. But I would conservatively suggest that originalism, if it has any meaning, will adhere to three fundamental features: 1) The separation of the three branches of government with sharply defined powers, 2) a preference for returning local authority to the individual states, and 3) textualism, that is, the idea that “words mean what they conveyed to reasonable people at the time they were written.” I don’t want to give anything close to a detailed discussion of these tenets. What I would like to show is that they are not based on airy principles or rationalism, but on the concrete realities of American history and politics in the present day.
SEPARATION OF POWERS
The separation of powers is maybe the most obvious feature of the American system. Our tripartite government of equal branches is first-week Civics 101 material. Slightly more complex is the doctrine of non-delegation: The idea that the legislative branch is for law-making, the executive for enforcing the laws, not making them; and the judicial for assessing the laws’ application, not making them. This peculiar system, borrowed so liberally from ideas of Locke, is stringent in a way our English forebears could not envision. Judges, after all, for centuries played a prime role in making law; to this is owed the brilliancy of the common law. Likewise, the House of Lords played the role of court of final appeal, seemingly abjuring the legislative role for a judicial one. As legal fictions go, the separation of powers is a surprisingly robust one.
But again, all real constitutions are grounded in reality, not theory or paper. For all the originalists I have met, I have never met one who sought to establish the branches on 1787 terms. Though of course nowhere stated in Article II, it is the nature of the executive branch to usurp more and more power for itself. President Jefferson vitiated his own ideals of the limited executive and local self-rule by annexing Louisiana. President Jackson granted himself the power of vetoing bills even without believing they were unconstitutional. President Lincoln—well, enough said. For all assorted hubbub about Americans being lovers of limited rights and enumerated powers, the iron law of the executive branch seems to be that the presidents who most expand their power are those that history most reveres.
In the 20th Century, the great power-mongers Franklin Roosevelt and Lyndon Johnson nested so much power in the bureaucracies that the presidency has all but disappeared. As it stands, Chief Executive Trump is not even in control of the apparatuses in the branch beneath him. His entire presidency thusfar has been a war of the Executive branch against itself, with the actual executive coming out the poorer almost every time. Whether the entire bout will see him flat on his back, we don’t know. The last president who tried to upend the bureaucracy was Richard Nixon.
The other branches fare just as poorly. Congress exists only to embarrass us. The Supreme Court has an almost uncontested plenary power; they are the final arbiter of their own authority, and their supremacy is more complete and less contested than any tyrant’s in history. We live under a system that is both overregulated yet somehow unaffected by the rule of law.
So what is the point in defending such a system, or any system that could have devolved into this? For anyone who views America on strictly ideological terms, I doubt there is any. The spirit of the original constitution is long dead, and the text of our paper Constitution read so speciously as to render it meaningless. The states never would have ratified the Constitution or separated from King George if they had seen tyranny such as ours.
I take it as a given that no one reading this is unfamiliar with our institutional decay, nor with the growing (and completely reasonable) distrust of all our institutions. I take it that they have seen technocrats pushing us further towards world government, and that even Mencius Moldbug is clamoring for an omnipotent Coronavirus Authority (apparently somehow immune from the poison seeping through every other American bureaucracy). I would say, even with all these facts, that the American system is still defensible as the least of all possible present evils. Our branches of government are only names, but those names still have power. The divisions, so unfaithful to the textual Constitution, still have a role in the actual constitution of our nation.
I would point out two aspects from Rome. The Caesars dared not call themselves kings, even long after the republican system broke down. The titles and structure of the Roman republic no longer did the government much good. But fidelity to the ideals of the old system protected the Roman people. The Caesars could be emperors, but they could not rule the way an Eastern tyrant would without incurring the infamy of a Nero or Elagabalus. The legal fictions long since lost their institutional purpose, but the figments of liberty they offered remained. Rome remained a commonwealth for this reason, not because the republic system provided any institutional bulwarks, but because it provided a framework through which the imperial decrees had to be judged.
In the United States, we already suffer under an imperial executive. Autocratic government is here to stay; the only question is if the autocrat will take the form of crushing bureaucracies which make their own rules, or men guided legacy of two centuries. Rome became more of a commonwealth under the imperial system than in the last years of the republic precisely because the Caesars made it clear the state was no longer merely a husk to be plundered. It would do us well in America to reconcile ourselves to the same conclusion. Our system has already been beset by the tests of the Gracchi and Sulla, and it has failed miserably.
Any conservative worth his salt knows that the most important political projects of the present day are to manhandle the bureaucracy and neuter the courts. This is inconceivable without a strong executive. If we ever actually get this strong executive—someone to step in and stop the looting of our nation—he will go by the name of president. This isn’t owing to anything special about the office—Lord knows the faith placed in Donald Jon Trump is inexplicable otherwise. It only arises because the title itself lends legitimacy.
I have no idea if a president could or would gain the power to crush the bureaucracy and ignore the courts. But I know in the American system, there is no still better candidate for someone who might do this than the president. The utility of the present system lives in its abuses. Because though they are abuses, they are constrained by the habits of two centuries and even some deference to the Constitutional text itself. As a guard of liberty, habit is worth everything, paper nothing.
The doctrine of states’ rights is maybe the best antidote to the notion that America is, or ever was, the creation of liberal technocrats. No rationalist could explain why our states are as they are. The states are accidents, based on the logistics of English trading companies, the exigencies of religious exile, and the course of mountains and rivers. They are not rational, like the French departments, but subject to God’s geographic whims and historical caprice. Just look at the outline of Rhode Island next to Pennsylvania, and scoff at the idea that our nation is an “Empire of Reason.”
Likewise, there is nothing classically liberal or rationalistic about states’ rights. How appropriate that Senator Calhoun, their greatest advocate and fullest explicator, was also America’s greatest reactionary. From the Hamiltonians’ desire to yoke the nation beneath capital, to the faceless bureaucrat of the present day, the states have intransigently stood against the blanket application of universal rule. We have transitioned from confederacy to nation to empire, but our strange commitment to statehood has stayed with us.
Why adhere to this weird system of fifty semi-sovereignties? The Federal Government is now the lord and master of all, granting states privileges only by its own largess. Our monoculture threatens to homogenize all our differences and divides. Statehood often seems nothing but a scam created by state bureaucracies to make doctors and lawyers pay separate dues. Moreover, the very name “states’ rights” raises the specter of slavery and treason, all hiding under the collective umbrella of racism.
Yet for all this, the spark of independent political organization has not died, and its unique value should not be understated. The modern technocrat’s defense of states’ rights is that the states provide “laboratories of democracy.” It’s true, they are arenas where somewhat fringe political ideology cannot be immediately squelched by the Feds. But no great mass of people has ever fought and died over laboratories. Americans’ commitment to statehood is based on love and sacrifice; it is irrational, and must be observed as a historical fact than a political theory.
It is no coincidence that the states now most engaged in the struggle over the rights of unborn children are well-versed in the battle for state autonomy. This cannot be explained by recourse to “laboratories of democracy,” nor wholly to any particular religious or moral fervor. Rather, it is the unintended result of a centuries’ long struggle against centralization. There are many excellent pro-lifers in Massachusetts, New York, California who are saving babies as I write. But none of them have political power the way pro-lifers in Mississippi and South Carolina do. The only vibrant and politically efficacious pro-life movement in the Western world exists in the America, and it exists and thrives because of states’ rights.
Catholic social teaching speaks of “subsidiarity,” or the principle that matters of governance ought to be handled by the least centralized and most local government entity. The problem with any top-down implementation of such principles is that any entity that has a power to split up government entities likewise has the power to combine them. The American states possess an inherited legitimacy in opposing centralized power. To toss this away, especially at a time when the ongoing crisis of our supply chains highlights our need to return to smaller-scale communities, would be the height of foolishness.
The above two characteristics are unique to America. Textualism is intrinsic to conservatism in a deeper sense. The moral claims made by textualism are such that no honorable man, and certainly no Christian, can oppose them. Textualism is the attribute most closely associated with originalism. In the words of Justice Scalia, textualism is the doctrine that “words mean what they conveyed to reasonable people at the time they were written”—essentially, the legal argument that a spade is a spade.
Textualism is the element of originalism I have seen most Rightists push back against. For one, textualism is seemingly apolitical, and of course its application can sometimes result in enforcing policy that liberals approve of and conservatives hate. More importantly, leftists have been changing the meaning of clear legal text to their benefit for a century; isn’t it about time than men of the right began catching up? So the argument goes.
Just at the level of syllogism, there is a contradiction in terms regarding a “living” law. If we define a law simply as a guideline of conduct, and the words composing this law shift their meaning, those words no longer constitute a guideline for conduct, and the law is not a law.
Any Christian must acknowledge that to allow words to change their meaning is inherently dishonest. It is a form of dissimulation, a kind of alchemy or verbal usury. It is saying one thing and meaning another—or more precisely, saying one thing and planning on it meaning another thing sometime in the future. It is using language in a way counter to what it is meant for, which is to express the truth. It is nothing but a lie, and is therefore a sin. For anyone trying to establish or maintain a state on the “common good,” the discussion can effectively end here. As St. Augustine says, “No one in lying, insofar that he is lying, may serve the faith.” What is this Christian commonwealth where the ends justify the means, this Civitas Dei where good comes from evil?
And in the end, abandoning textualism just will not work. The left can make up terms like postmodernism, legal positivism and “living constitutionalism” because they control the academy. None of these terms existed before the 20th Century because they only exist as a way to lend legitimacy to the particular usurpations that arose during that century. There is no way to interpret a written law but by “textualism;” every other jurisprudential “method” is just a cover for political lying. It is no wonder why “legal scholars” have convinced themselves of the opposite conclusion—their relevancy and salary lie in being able to explain it outside of blatant lying an usurpation. But be sure, absolutely no one on the left seriously believes in the “living constitutionalism” as some kind of neutral principle disassociated from their institutional power. NARAL is well aware that a living Constitution may well spring back up against them, and just as quickly as the living principle was lauded, it will be condemned. How do conservatives, who have almost no power, plan to make their systematic dishonesty and incoherence stick?
Textualism is not a question about expediency, it is about first principles. If the left is the cohort of techne, the right must be the defenders of logos. It should not need to be said that words have set meanings; and for the average man on the street, it need not be said. This unity of commonsense between originalists and regular people is originalism’s greatest strength. Textualism has meaning with the regular man; the “living constitution” stinks to him as a principle. Even if he supports some particular effect this “living constitutionalism” has wrought, he is fully aware that anarchy cannot be a principle; that it is trying to make a rule that there “are no set rules,” which even an idiot can see is impossible. This man may not know what “due process” means precisely, but if he wakes up on January 22nd and finds it means “baby murder” when it did not the day before, he is wise enough to know that he is being conned. The 14th Amendment’s “due process” never meant baby murder. There is word so word so multisyllabic, no brilliant -ism so touted in papers and press that you can cover up that lie.
American conservatives have almost no power. In academia they are functionally non-existent; in the bureaucracy they are trounced; even in business they are being purged by woke HR managers and craven shareholders. The courts are the one area where they have success, not as the result of ephemeral election results, but as a genuine intellectual counter-current which has punctured the left’s hegemony in that realm. The power conservative thought has in the judiciary—limited as it is—is almost unique in American life.
My defenses of the tenets posited above are my own; I can’t claim that any other originalist holds these beliefs, or that I wouldn’t be tarred and feathered at any Federalist Society luncheon I spouted them in. I only point out that my defense of these tenets was not based on theories or complex schemes, but on experience and commonsense. If I seem a bit extreme in knocking the text of the Constitution, it is only because I love the constitution of America as she actually exists. Too many people, both those who love and deride this nation, don’t believe America has anything more than a paper existence. This attitude serves no one besides demagogues.
But the reason originalism succeeds is that it is genuinely conservative. Originalism is one of the few areas of mainstream conservative thought that is not fatally tainted by technocratic wonkery or “classical liberal” ideas. It takes things as they are, not as they ideally would be. The notion that we should now ditch originalism is astounding. I almost think it must be satire. It makes almost entirely no sense. It is comedic, like a fighter getting in his first good punch then immediately asking for a draw. It would show the right’s passionate desire to lose, its inability to understand its own meagre victories, and its incompetency to regulate its own behavior, let alone that of the polity.
Don’t believe the bogus claim that we can salvage America by going back to our roots. We clearly cannot. But if there is any hope for the future it must come from the strength we already have, which we have inherited through the centuries, not some paper form of government which will somehow enlighten the American people and redirect us to the path of sound government. Scrapping your constitution to build a new states on the principles of Thomas Aquinas is no less stupid than scrapping your constitution for the ideals of Rousseau. I see in my circles reference to “common good” government, of Caesaro-Hapsburgism-subsidiarianism. It all comes off like the ramblings of a Jacobin who has just stumbled upon Le Contrat Social and is ready to build a new world from scratch. How embarrassing to listen to this drivel—shameful, that after two centuries Catholics have so little to contribute beyond Abbe Sieyes.
With the rise of Donald Trump, in all his brashness and willingness to pull no punches against his political enemies, thoughtful Rightists have fought against the neutered think-tank approach to conservative politics, of breaking away from kowtowing to liberal ideals. The wisest of these are realizing that for all the David Brookses of the world touting the GOP as the “party of ideas” politics is ultimately about power. But this should not make rightists forget that ideas themselves have power.
Originalism can be criticized for being backward-looking; all conservatism must be backward-looking. American republicanism has always been a process of breaking down, and conservatism has ever been the desire to slow this process. In the present day, it is clear that conservatives are engaging in trying to stifle a fire that is consuming a house with a porous roof, rotting walls, shaky foundations. And there are calls from the right to abandon this fight, leave this structure to the flames that will inevitably engulf it, and build a new one—this is only sensible. But this kind of calculus ignores the most amazing thing about the vain firefight: The fact that there is anyone willing to fight for the structure at all. Those who ask us to eschew the fight so we can build a new home atop the rubble have no answer where the energy to build anew will come from. Conservativism as a whole may seem to be a weak motive for political change. But just as every country comes to us as it is, not as we would have it be, our politics have to be a reflection of what things are just as much as they reflect what we would want to be.
This is why I say originalism is not an ideology; it is not even so much a doctrine. It is a malleable system (perhaps too malleable) based more on happenstance than on reason (perhaps too little reason), which seeks to conserve in law the most basic ideals we have. Properly understood, it is the legal reflection of the actual make-up of this country; of the history it has endured, and the perhaps-vain attempt to preserve the values of the past amid ideological chaos. This has always been the situation of decent people in America, and as long as America last, always will be. Originalism is the American constitution itself.
4 Comments Add yours
While I admire the observance of pragmatism in the form of what the public can accept, the whole argument here, as I understand it, seems self-defeating. Arguing for textual interpretation of law while at the same time arguing for a the emergence of an effectively autocratic system that keeps only the mere trappings of the American government is hypocritical. Telling people that what you want is the same as what we have is just as dishonest and sinful as saying that a law means something different than what it originally meant.
I think the ultimate realization of the ideal here is achieved in a train of thought that you only briefly touched upon: secession of states. Admittedly, it feels to me as if there is less talk about this than there was a year ago or so, but it is an idea that effectively serves both ends. It allows for states to preserve their original rights and ideals while creating a new means of central organization that would presumably be less hostile to these rights. I think most people could live with it, whether they be a twitter frog, a normal person, or even your odd leftist. Of course, it brings challenges of its own (already imagining embargoes on insufficiently woke seceding governments), but I feel that if Trump cannot be a Caesar, we will never find someone who can.
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Fair point–I was wondering if it was worth trying to reconcile honest textualism with what we have now, which is already an autocratic system. But to return to the pre-FDR Constitution would require a revolution. My principle here would be “don’t do more harm.” Everyone who takes the modern constitutional system seriously is accepting a lie on some level for the sake of maintaining peace. I would only point out that ignoring the written law usually only works if you have power (i.e. if you’re on the left), and so my argument for textualism is ultimately pragmatic.
I agree….I would love if secession were an option. If some lefty state is crazy enough to do it, it would be a blessing for everyone.
The best reason for the federal system (and really the only compelling one) is to permit sovereign states to exercise continent-wide mutual defense vs. external invasion (demographic or military). The system becomes net-negative apart when military forces are used internally to enforce domestic policies regarding things like slavery, suffrage or freedom of association (and disassociation).
The benefits of sea-to-shining-sea defense vs. the geostrategic circumstances of every other country on Earth would be worth some compromise, but not at the price of the bizarre openness-obsessed monoculture Imperial America now imposes on all 50 states or whatever sovereign regions might make more sense in our present circumstances.
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Fundamentally, the broader conclusions of increasing state sovereignty is key. Restoration is going to be messy, but going local seems like the most promising path. However, while it would be refreshing to see a return to that 1787 Originalist thinking, I’m not holding my breath. It’s a concept so foreign to the mainstream modern right, that Scalia is likely the high water mark for future conservative SC judges.