Obama is the most recent antagonist to take a stand against originalism (commentary by Gary L. McDowell)

March 10, 2011

Professor Gary L. McDowell's commentary, published in newspapers, on "Understanding what the framers meant it to say"

The piece at it appeared in the Deseret News March 6, 2011:

RICHMOND, Va. — Twenty-five years ago this past summer, then-Attorney General Edwin Meese III stood before the annual meeting of the American Bar Association and displayed the temerity to call for the nation and its courts to abandon their errant juridical ways and return to what he called "a jurisprudence of original intention."

Since that moment the advocates of liberal judicial activism have dedicated themselves to discrediting the idea of what has come to be called "originalism," inevitably portraying it, in the words of one scholar, as an "inadequate and dying methodology." 

Barack Obama is the most recent antagonist to emerge and take a stand against originalism. Rather than select judges who understand themselves to be bound by the text of the Constitution and the intentions of its framers, the president prefers those willing to keep the Constitution in tune with the times by elevating their own personal sentiments about social justice to the level of constitutional law. The search for "empathy" was to be his standard for his judicial picks his first two years; there is no reason to suspect he will abandon that in the last two years of this term.

Like many of its critics, the president fails to understand that originalism is not simply one method of interpretation among many equals; rather, it is the only one with a moral foundation that derives from the very essence of the American constitutional order. The Lockean philosophy of natural rights upon which the entire constitutional edifice rests demands it. The reason is that arbitrariness in the administration of power — including what Justice Joseph Story condemned as the "arbitrary discretion of the judges" — is the greatest threat to the rule of law.

Being subjected to "the inconstant, uncertain, unknown, arbitrary will of another man," John Locke had taught, is the very essence of tyranny. By the mechanics of the social contract the free, equal and independent people in the state of nature were reduced by their own voluntary and positive agreement to "one body politick under one supreme government."

But that government had to be above all else a "lawful government," one in which the "ruling power" would itself be bound by "declared and received laws" and would not govern by mere "extemporary dictates and undetermined resolutions." Such dictates could only be the "exorbitant and unlimited" opinions of the governors based upon nothing more certain than their own personal "sudden thoughts, or unrestrained, and till that moment unknown wills."

This was the principled foundation of the received tradition concerning the rule of law down to the time of the founding and beyond. The great English jurist Sir William Blackstone had argued strongly against the view that proper interpretation of the law could ever rest simply upon the "arbitrary will" of the judges.

The idea that legal meaning could be derived from the "private sentiments" of the judge deciding a cause, that the proper grounds of a decision were to be found in "the breast of the judge," the celebrated commentator pointed out, would have the effect of making "every judge a legislator," ultimately setting the judicial power above the legislative, an act that would be, he argued, "subversive of all government."

In terms of American law and constitutional jurisprudence, this understanding of the dangers of arbitrariness in interpretation was not a view carved out to serve the political inclinations of one party or the other in the early republic. The Jeffersonian Republicans and the Federalists were in complete agreement on at least this one principle. Judge Spencer Roane, that most Jeffersonian of the Jeffersonians, used language that sounded much like that of Justice Story when Roane condemned what he saw as the "arbitrary discretion of the judges" being used to alter the original constitution to make it fit "the mere will and pleasure of the supreme court."

The battle over strict versus loose construction between the Jeffersonians and the Federalists was spawned by the fear on both sides about arbitrariness in the administration of power.

Thus was Jefferson's great constitutional foe, Chief Justice John Marshall, unfalteringly committed to the belief that judges, no less than other officials, were bound by the terms of the Constitution. For them to go beyond their strictly judicial powers and exercise something akin to political discretion, he argued, would be to commit nothing less than "treason to the Constitution."

Marshall took seriously the demands of a written constitution, and was dedicated to the proposition that its meaning was to be found in "the intentions of the framers," and not in the "sympathies" of the judge. "Courts," he insisted, "are the mere instruments of the law, and can will nothing." Indeed, he insisted that the judicial search for the intentions of the framers or the law-givers was nothing less than "the most sacred rule of interpretation."

This belief that the framers of the Constitution said what they meant and meant what they said, and that their meaning can indeed be discerned, is what makes a commitment to originalism the most important means by which judicial power is rendered safe under a written constitution of limited and enumerated powers. It is that commitment that keeps the judges and justices, in James Kent's splendid phrase, from "roam(ing) at large in the trackless fields of their own imaginations."

It may well again soon fall to the constitutionalists in the Senate — Democrats and Republicans alike — to keep that commitment alive when fate demands that they consider the president's next, and presumably still empathetic nominee to the Supreme Court.

Gary L. McDowell holds the Tyler Haynes Interdisciplinary Chair in Leadership Studies, Political Science, and Law at the University of Richmond. He is the author most recently of "The Language of Law and the Foundations of American Constitutionalism." He wrote this for The Free Lance-Star in Fredericksburg, Va.