Why would we expect philosopher judges?
The manifesto for “A Better Originalism”, based on transcendent moral truths and a teleological concept of the regime, has been skillfully criticized and defended in this room. But these criticisms mainly concerned the issue of judicial authority. The question of power – its nature, its tendency to grow and the behavior of the people who wield it – also requires attention.
One hesitant to blame the writers of “A Better Originalism” for mistakes, but they have to grapple with at least two possibilities. One of these is the latent premise that constitutional issues are, by definition, judicial issues. This means that the authors are looking for a different kind of constitutional interpretation and address their writing to judges. Why not to the legislature? Or citizens? More currently.
The second mistake is the assumption that the type of judges they are looking for a) are available in significant numbers, and b) those types of judges are likely to remain if they are endowed with power – especially as given by the Authors is described. Yet somehow, “A Better Originalism” illustrates the possibility for a different kind of judge by noting the persistence of the wrong kind of judge. One of them is Judge Neil Gorsuch, whose ruling in the Bostock case they see as evidence that conservative jurisprudence is out of joint. Could the persistence of bad judges or judgment call into question the thesis that we should rely on judges at all?
Judges should judge well, but they are not suited to be the moral guardians of the regime. American law school curricula do not prepare prospective judges to discover the moral truths under the law. They train them in legal practice. If there has ever been a judge who has broken with this form and raised hope in the kind of jurisprudence that seeks “A Better Originalism,” it was surely Gorsuch who studied natural law with John Finnis.
But the problem goes deeper than judges who are unsuitable for the task of “A Better Originalism” would assign them. Judges so appointed would be powerful. And one moral truth that the American regime transcends and underpins is that, as Federalist 48 explains, “power is of an overarching nature.” In other words, if a man or woman is anointed to identify the regime’s moral goals and make choices that impose them, how can we expect such a person to behave? With humility and restraint? Or with arrogance and error?
We know that power is at play in “A Better Originalism” because the crisis, the servant of power, was conjured up: We are enduring “the regime’s greatest crisis since the civil war”. “Really?” Didn’t Woodrow Wilson run amok? Not Jim Crow? Maybe a crisis. But the worst since the Union broke up because of the enslavement of people? One hesitates to say that this is a seizure of power. But it’s hard not to notice that these are the kind of things power seekers say.
The point is not our ability to say that the judges were wrong. The point is, lawyers are wrong, and the situation of judges, especially those seeking “A Better Originalism,” makes them particularly prone to error.
In terms of the conduct of judges with power, we have data, so to speak, to move on. Judge Anthony Kennedy, the Knight Errant of the Sweet Mystery, was notoriously moralistic. Chief Justice Earl Warren saw himself in the very words A Better Originalism suggests: looking beyond the letter of the law to its underlying goals.
Well, it is not enough as a countermove to call this relativism – to say that judges can of course be wrong and that thoughtful people can say so objectively. But the authors are launching precisely this preemptive blow: “When our friends claim that judges on the left uncheckedly take this as a new license for moral reasoning, our answer is: Why do we assume that we cannot distinguish between plausible arguments? or flimsy? ”This defense is undeniable. It is also irrelevant to the question of power.
The point is not our ability to say that the judges were wrong. The point is, lawyers are wrong, and the situation of judges, especially those seeking “A Better Originalism,” makes them particularly prone to error. Due to their construction, they are insulated. They are powerful, a quality that is poorly compatible with morality and tends to blur memories of one’s fallibility. And the nature of their authority serves moralism.
It is therefore important whether “A Better Originalism” is written to be read like Book VI of the Republic – as the establishment of an ideal while its availability is indifferent – or whether the authors have to tell us where and how we will judge these find keep them honest. Otherwise, in the position of economist, they will be stuck in a hole, the solution to which is to adopt a ladder.
True, learned Professor Hadley Arkes, one of the authors of A Better Originalism, wrote on this page that he and his colleagues Lincoln believe that the judiciary is controlled by the other branches of government. However, “A Better Originalism” also says that the separation of powers is subordinate to the grandiose sweep of the goals of the American regime: “Health, security, prosperity and the prosperity of nation, communities, families and individuals alike.” Never mind that people – reasonable people – disagree on what serves those purposes. If a judge decides – choose: Why not prosperity? – and the legislature tries to contain it, does the procedure or the substance prevail?
The manifesto bases this argument on the idea that a regime must have goals to which processes are subordinate. Otherwise, genocide or slavery would be morally acceptable if they were democratically elected. This is a low bar, a reductio ad absurdum, which obscures the fact that the goals pursued by the authors (health, safety, prosperity and prosperity) are much more opaque. But even slavery was abolished in America by a constitutional amendment by republican means, which was preceded by a war by citizen soldiers. The Supreme Court was far worse than useless – which proves that judges can be wrong, and that, like Lincoln, we should say so. But Chief Justice Taney, who was freeing his own slaves, really thought he was saving the union. All this sad episode proves is that judges are not very good at saving the country. With apologies to Madison, unbridled power is to make mistakes, which is air to fire.
More generally, a society that would choose genocide or slavery today is too corrupt to be saved by judges. In Federalist 55, Publius addresses those who believe Congress will commit every possible abuse. His answer works for those who believe that humans will too:
The sincere friends of freedom who indulge in the extravagance of this passion do not know what harm they are doing themselves. Just as there is a certain depravity in humanity that requires a certain degree of prudence and distrust, so there are other characteristics in human nature that warrant a certain appreciation and confidence. The republican government presupposes the existence of these characteristics more than any other form.
That brings us back to the first mistake of “A Better Originalism”: that all constitutional issues are legal issues. For judges who do not seek and apply moral truths under and beyond the law, the authors use the dreaded epithet “positivistic”. But the moral truths that underlie the law would be better applied in its creation, not in its interpretation, just as James Wilson’s jurisprudence was a science of legislation.
As Robert Bork, the now desacralized martyr of constitutional conservatism, explained, judges must be positivists, but the people who make the law – legislators and citizens – cannot be. In a review of Harry Jaffa’s Original Intent and the Framers of the Constitution in the National Review in 1994, Bork wrote:
The Framers were not legal positivists for the very good reason that no one who makes laws can be. The legislature must have ideas of right and wrong that precede the law it enacts. The Framers wrote laws that presumably embodied as much of their thinking about natural rights as prudence would permit, and the judge is required to obey the law regardless of what he thinks of its natural law equivalent. This means that the judge must be a legal positivist in his judicial capacity, but not in any other capacity.
Legislators must understand the goals of the regime and the moral foundations of law. Ultimately, such appeals must be made to the citizens. Maybe it needs better originalism. It is less clear that it should be entrusted to the professional class – the judges – who blame the writers for messing up the old one.