The Debate About the Court

Confirmation of a Supreme Court justice is a circus disguised as a graduate seminar. But amid all the pseudointellectual parading and posturing, there are real principles of constitutional interpretation at stake. From a libertarian point of view, I think that four basic schools of interpretation can be identified, each with its attractive and unattractive results.

1. The originalist school, in which the Constitution is interpreted according to the “original intent” of its writers. Predictably, the results are most attractive to libertarians where the freedoms explicitly mentioned in the Constitution (e.g., freedom of speech) are concerned, and least attractive where they are not (e.g., in most matters of local and state legislation).

2. The evolutionist or revisionist school, in which the Constitution is interpreted as “a living document” whose meanings constantly develop in accordance with judges’ attempts to “grapple with new conditions.” This is a very unattractive position for libertarians who want to preserve explicit constitutional rights (e.g., 2nd Amendment rights) from the social engineering of modern judges; it is more attractive to those concerned primarily with such contemporary issues as abortion and gay marriage.

3. The theoreticist school, in which the Constitution is interpreted, not according to its original intent, but according to its aboriginal principles, “the principles that inspired it.” For this school, the final meaning of the Constitution is found not in its words but in the theories that originally justified its words, and not in those theories as explicitly stated by, for instance, the words of John Locke, but in the system of ideas that can be found, undamaged by personal errors and contradictions, behind those words. Theoreticism sounds more abstruse than it is. It is an attempt to say that the framers worked with certain ideas of liberty; these ideas were their intellectual “intent”; and we must interpret their words as expressions of that intent, whether the words capture the whole of the intent or not. Theoreticism allows almost every constitutional controversy to result in a victory for traditional libertarian principles; it has therefore been very attractive to many libertarians. One of its unattractive features is that it allows judges with different ideas of “liberty” or the origins of “American ideas” to read the Constitution in that other light.

4. The proceduralist school is the dullest of all schools. It is not meant to be inspiring. It is meant to reduce the risk of constant judicial upheaval by demanding that judges follow orderly processes, paying due deference to stare decisis. We are hearing much of that principle these days, because modern liberals don’t want the Supreme Court to overturn past decisions that they favor. The decisions may have been reached hastily or arbitrarily, but if the results are favorable to what the liberals regard as liberty, they should stand. By the same token, conservatives challenge proceduralism — now. Proceduralism is a ball that anyone can kick. I imagine that few libertarians would want a Court that had no respect for precedent, continuity, and rules of judicial procedure; I also imagine that few libertarians would argue for the maintenance of decisions that they regard as contrary to their own theories, simply on grounds of precedent.

In the battle over Judge Kavanaugh’s nomination, all these schools of thought will be used and abused, though usually without reference to the names I have given them. It will be interesting to see what Kavanaugh does with them. It’s only fair, however, that I should state my own position. I am a supporter of the first school, the originalist.

Why? One reason is my belief that most of the rights that libertarians value are clearly and originally expressed in the words of the Constitution. Another reason is that I am a literary historian, and it would be absurd for me to read texts written by others without a governing respect for the authors’ choice of words, claiming that the texts mean something that their words don’t say.

But here’s where originalism is itself misinterpreted. Originalism is about interpreting what Hamilton called in Federalist No. 78 the “manifest tenor of the Constitution” — “manifest” meaning clearly evident in the original words. Originalism is about interpreting a document, not the psychology or social position or personal aims or philosophies of the authors. Shakespeare’s purpose was to make money, but King Lear is not about the importance of making money. Chief Justice Taney, in the Dred Scott decision, thought that the authors of the Constitution, some of whom owned slaves, intended it only as a document for white people; unfortunately for him, that’s not what the document actually says.

To my mind, the best books on these subjects are still Validity in Interpretation and The Aims of Interpretation, by E.D. Hirsch. You can see what you think of their arguments.

The originalist school of interpretation will be least attractive to libertarians who want to claim certain rights that are real enough but are not in the Constitution, or to accomplish ends that cannot be accomplished, right now, except through revisionist courts. I am thinking, for instance, about the death penalty, which has put constitutional interpretation farther from the manifest tenor of the authors’ words than anyone could possibly have imagined. If the death penalty is bad, an originalist would say, it would be worse to try to abolish it by revisionist interpretation.

The good thing for libertarians is that an originalist reading of the Constitution — a truly originalist reading — would find little in that document on which to base the vast and crushing edifice of the federal government. And that, of course, is why we will probably hear least about true originalism during the political debates about Judge Kavanaugh. If the debaters took it seriously, most of them would be out of a job.