The rationale for what is now called “originalism” has chiefly to do with the legitimacy of the 1787 Constitution.
For those whose knowledge of Justice Scalia was limited to a casual acquaintance with the exquisite certitude of his judicial writings, the tone of his son’s moving homily—suffused, to what surely would have been the late jurist’s liking, with talk of grace and sin—must have been jarring. But Scalia’s judicial philosophy was always modest, not just with respect to the judge’s role in the constitutional orbit—that much is well known, or should be—but also when it came to the inherent limits of human knowing. Scalia’s was a jurisprudence not merely of original meaning, but of original sin.
It was thus deeply conservative, yet growing numbers of legal thinkers on the Right urge that it be jettisoned in favor of a jurisprudence rooted in profound confidence in human intellect. The libertarian critique of Scalia’s conception of the “Third Branch”—when concerned with judicial overreach, he was always quick to use that term to remind his colleagues of their place—holds that the Constitution can coerce us only to the extent we consent to it and is justifiable only to the extent it protects natural rights.
There is a missing modifier in this assessment: “right now.” This approach to constitutionalism is ultimately apolitical and ahistorical. The law must be justified to individuals, in their individual capacities, right now. Sometimes the modifier is explicit, as in the most distinguished of the libertarian originalists, Randy Barnett, who, defending originalism, writes:
Short of making the claim of illegitimacy, however, we are bound to respect the original meaning of a text, not by the dead hand of the past, but because we today—right here, right now—profess our commitment to this written Constitution, and original meaning interpretation follows naturally from this commitment.
Libertarian originalists are typically led to outcomes compatible with the Constitution, with the result that most of them agreed with Scalia in nine cases, if not more, out of 10. Certainly Barnett’s scholarship on original meanings is among the finest in print. The dispute is often not what the Constitution means but rather why it obligates. For a school of libertarian originalism, the Constitution binds not because of any inherent obligation to the past or future, only its utility to the here and now. Original meanings are a method of interpreting the Constitution but not the reason it obligates us. It obligates us because we accept that it is good for us today. This is Tocqueville’s “philosophical method of the Americans,” in which tradition is useful only as information, not as authority.
These divergent means of justifying often similar outcomes—one because the Constitution is traditional, another because it is advantageous—differ substantially, and importantly. For if any coercion must be justified to every individual, and if the Constitution is subject to constant assessment right now, the assumption is that all of us, right now, are up to the task.
This method presumes, to begin, an equality of wisdom between our generation and the Framers, rather than looking on them with a reverence due to those whose prudence has proved itself. Indeed, the method generally undermines the possibility that wisdom might need to prove itself over time: that the supposed “dead hand of the past” might actually be more useful to us in our own time precisely because it has endured manifold varieties of circumstance and, far from dying along the way, survived them.
More important, and most revealing, this ahistorical approach explicitly denies that we are obligated to the past or to the future. It is a philosophy that would permit an individual to raze a great estate descended from generations past and owed to generations hence on the grounds that doing so is convenient right now. The Constitution does not bind us because generations can obligate one another, but rather because it is justifiable to us right now.
And crucially, it must be justified to each of us individually, not to a political community. This leaves little room for the possibility that the individual standing alone at one point in time may lack the wisdom to assess the fullness of natural rights, justice or even the best mechanical workings of a Constitution. That is partly because information is imperfect and, in the infinite complexity of society, accretes slowly, across generations. It is partly because man is a political animal, naturally equipped to pursue justice in society—whose mechanisms are inherently coercive—not excerpted from it.
But it is mostly because man is fallen and immersed in imperfection, which brings us to the philosophy of jurisprudence Justice Scalia embraced: original meaning tinged with deference to political institutions and tradition.
To say, as he did, that the Constitution as written is binding because one generation (and amending generations) endorsed it and it had not been changed is to acknowledge that, as Burke wrote and as Joel Alicea has emphasized, society exists and obligates over time rather than solely at current moments in time.
Madison, too, acknowledged as much in telling Jefferson that the improvements the dead made on the earth could bind the living, and in affirming the constitutionality of the National Bank on the grounds that Americans had assented to it for a generation.
It is certainly true that we can draw on the past, from Cicero to Aquinas, in attempting to ascertain natural law. But for judges to deliver it by decree, and to justify the Constitution to ourselves by the extent to which they do so, is still to measure our law in instants, not generations, and by individuals, not communities.
To defer, with Justice Scalia, to the Constitutional text as authoritative because the past—and the duty to transmit it to the future—can bind us, by contrast, is to acknowledge the limits of our own reason. Deferring to tradition in Constitutional interpretation—as he did on issues ranging from parental rights to moral disputes—is based on similar premises. Thus Scalia:
The provisions of the Bill of Rights were designed to restrain transient majorities from impairing long-recognized personal liberties. They did not create by implication novel individual rights overturning accepted political norms. Thus, when a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down. Such a venerable and accepted tradition is not to be laid on the examining table and scrutinized for its conformity to some abstract principle of First-Amendment adjudication devised by this Court. To the contrary, such traditions are themselves the stuff out of which the Court’s principles are to be formed.
We cannot discover the fullness of justice as isolated individuals at isolated moments. Human reason, to say nothing of the human soul, simply is not equipped for the task. To suggest otherwise is to flirt with unlimited claims for human reason. Experiments have been staked on such claims before. Conservatives do not typically associate with them.