One might be forgiven for believing that there can be only one “conservative” interpretation of the Constitution: one that is faithful to the intent and meaning given that document by its framers. And, indeed, conservatives generally are agreed that great respect should be given the wisdom of the drafters, both because that wisdom was very real and because it is unwise for a people to look upon its principal founding document with anything less than genuine respect. Yet recent events concerning Supreme Court decisions and public arguments among conservatives have shown that this view of constitutional interpretation is not sufficiently full and nuanced to take account of differences between conservatives, and even some liberals, in constitutional interpretation.
When Justice Kennedy (no conservative, to be sure) opined in Planned Parenthood v. Casey (1992) that the Supreme Court could not overturn even so clearly baseless a constitutional interpretation as that given in Roe v. Wade (1973), by which the Court declared abortion a fundamental right, he demonstrated how badly the notion of precedent could be misconstrued by those entrusted with it. Moreover, he showed the limits of contemporary understandings of history and of the nature of our Constitution. The institution with which Kennedy was so concerned—the Supreme Court—has as its central task the correct application of laws, including the Constitution. As such, its duty is to construe properly and thereby defend the integrity of laws, including the Constitution. By perpetuating a clear misreading of the Constitution simply in order to protect its own authority, the Court was misusing its power, to the detriment of its duty, for its own aggrandizement. Moreover, precedent is intended to bind judges to generally accepted understandings of statutes, constitutions, and important legal terms embodied in statute and common law. To perpetuate a bad precedent is to undermine the purpose of a legal institution merely for the sake of defending the status of those currently exercising power over that tool. It destroys predictability, undermines laws arrived at through the democratic process, and elevates judges to the position of unelected super-legislators.
If a constitution is to fulfill its function of setting forth the basic rules by which a people is to govern itself, its terms of art—for example, “due process”—must be interpreted consistently over time. Changes to those meanings, or to the structure itself, must be undertaken through the political process. Should judges change those meanings on their own, the judges, and not the people, become the sovereigns.
Judge Robert Bork’s nomination to the Supreme Court was opposed and defeated by Senate liberals, aided by their counterparts in the legal academy and the media, because he had made precisely this argument. Bork had written that judges did not have the authority to redraft the Constitution (or lesser statutes) in accordance with their own beliefs concerning what is just, natural, or required by the nature of the American republic. The only way to achieve predictability, let alone justice, in judicial decision-making, Bork argued, was for judges to strictly adhere to the intent and meaning of the documents’ drafters, leaving aside their own opinions concerning what should be done in particular circumstances. Because much if not most of the liberal state had been built on the basis of Supreme Court decisions clearly contradicting the framers’ intentions, Bork’s views were deemed threatening and characterized as backward-looking and uncaring in terms of the needs of minorities and the poor.
Ironically, it was a set of judicial decisions clearly discounting the needs of just such social groups that established the precedents necessary for liberal judicial activism. Late nineteenth and early twentieth century courts repeatedly struck down state and local legislation aimed at alleviating labor and racial problems. They did so on the grounds that constitutional “due process,” by which the framers had meant the traditional common law of the land, in fact demanded “substantive due process.” By this the judges meant that the freedom of individuals to enter into contracts trumped any and all community concerns. Further, they argued, the Constitution’s commerce clause, which the framers had intended to apply very narrowly to interstate trade, in fact demanded a national market of uniform state and local laws—all favoring laissez-faire economics. During the Great Depression, under pressure from President Franklin Roosevelt and in the midst of a substantial change in membership, the Supreme Court reversed itself on the underlying economic philosophy, but not on the activist principles of its jurisprudence. No longer demanding uniform laissez-faire, the Court began imposing nationalist policies aimed at rooting out inequalities and perceived injustices.
The clear subjectivity of the Court’s jurisprudence caused concern in conservative quarters, but in Washington at least the perception that good was being done quieted opposition. Bork emphasized the subjectivity of these decisions in showing that the notion of a “living constitution” that would “change with the times” was merely an excuse for allowing judges to act according to their own will rather than the law. Yet Bork’s arguments raised concerns among conservatives as well as liberals. A lively exchange in the magazine First Things ensued. Hadley Arkes, Russell Hittinger and William Bentley Ball, all broadly conservative scholars, argued that Bork, while correct in much of his criticism of recent decisions, had too easily and completely dismissed natural law as a proper basis for judicial decisions. These critics further argued that judges must look to natural law (some going so far as to defend substantive due process) in order to form proper judicial opinions. Bork insisted that judges had no special access to knowledge concerning natural law and therefore had no right to make decisions on its basis. Edwin Meese III, attorney general in the Reagan administration, was one lawyer who later sided with Bork, arguing that interpretations of laws and of the Constitution must begin within the “four corners of the document.” That is, they should rely on the clear meaning of the words in front of them, rather than on any possible philosophical theories that might lay behind them.
Supreme Court Justice Antonin Scalia has argued for yet another form of originalism. In his view, courts should look to the language of the document they are interpreting as well as to the established traditions of the American people. Important terms in the Constitution should be read as they would have been understood by society at the time of their actual drafting rather than as a contemporary judge may wish to interpret them. This reasoning points to a more subtle—perhaps more accurate—form of natural law originalism, a form that recognizes that judges cannot create or even accurately read natural law in the abstract, but which also emphasizes the importance of the natural law tradition to the framers of the Constitution. Philip Hamburger, among others, has pointed out the extent to which the framers of the Constitution were steeped in the natural law tradition, and the extent to which they sought to bring that tradition to bear in its drafting. But the framers did not see natural law as either a detailed code of conduct or a mere abstraction to which judges and others could give their own, subjective content. Rather, they saw natural law as a general set of precepts demanding, among other things, virtue, civility, and respect for customary institutions, beliefs, and practices. The particular rights and duties needed to form a decent society, in keeping with natural law, were formed over time and were handed down in the form of common law practices and the language used to describe them. Thus, a judge’s job entails the proper interpretation of ancient terms (like due process, which goes back at least as far as the first Great Charter of liberties, the English Magna Charta of 1215). To interpret important terms of art—from due process to cruel and unusual punishment to free speech—requires a historical understanding of how these terms were understood by those who used them in our Constitution. And this in turn requires a historical understanding of natural law—of what it commands, what it permits, and what it forbids. Most particularly, it requires the ability and willingness to work hard to fully understand the meaning of old words rather than simply to fit their meanings to one’s own desires or prejudices.
Books on the topic of this essay may be found in The Imaginative Conservative Bookstore. This essay was originally published in American Conservatism: An Encyclopedia (ISI Books, 2006), and appears here by gracious permission.
- Bork, Robert H. The Tempting of America: The Political Seduction of the Law. New York: Free Press, 1990.
- Hamburger, Philip. “Natural Rights, Natural Law and American Constitutions.” Yale Law Journal 102 (1993): 907–60.
- Scalia, Antonin. A Matter of Interpretation. Princeton, N.J.: Princeton University Press, 1997.