A conflict of constitutions

The Senate hearing on Amy Coney Barrett’s appointment to the Supreme Court shows that we actually have two different constitutions today because the methods of interpretation by Democratic and Republican political actors differ so dramatically. Republicans see originalism as a way of interpretation. Democrats seek a method that will bend the Constitution toward “the moral arc of the universe,” which arc traces the parable of progressive politics.

The implications of this divergence are profound for both the nation and the academic debates on originalism. We are in a time of political polarization that has been unprecedented at least since the New Deal and probably since the 19th century. Successive waves of partisanship have now engulfed our fundamental document and threatened a kind of legal instability that we have not seen in the past 150 years. It is likely to get worse, especially as the Democrats cope with the threat of court wrappings that inevitably creates more and more court wrappings and transforms our highest tribunal into something more like the British House of Lords. Academically, the dramatic divergence shows that the positive argument that originalism should only be followed because it is our law is insufficient because senior officials do not agree on the recognition rule – that is, the standard by which we determine what Constitutional law.

One hearing, two constitutions

The hearing was, of course, full of the attitude and cynical maneuvers that politicians bring to any television event, especially one so close to an election. But it was really illuminating for the declared interpretive approach of the parties, although these approaches are applied inconsistently by many politicians. Republicans all affirmed some version of originalism or suggested that the Constitution should be followed as it was written and that the law should be sharply separated from politics and politics.

In contrast, the Democratic Senators on the Judiciary Committee have never so explicitly rejected originalism and advocated explicitly progressive jurisprudence. Perhaps the reason was that the lawyer closest to an avatar of progressivism at court – the infamous RBG – had just died. Senator Mazie Hirono called them “our champion”. Other senators used their heritage to describe the type of constitutionalism they favored. Senator Whitehouse noted that she “bowed the arch of the moral universe in the direction of justice for all Americans.” Senator Amy Klobuchar spoke about how Ginsburg had moved America forward and that confirmation from Amy Barrett would move America backwards. These comments are typical progressive tropes for legislation, but here they are applied to the interpretation of the Constitution: the meaning of the Constitution is found not by studying the past, but by projecting a glorious progressive future.

Other senators criticized the originalism more clearly. Senator Chris Coons said the originalism would undermine important constitutional obligations related to freedom and privacy, and implied that it would create policies that are undetectable to “most Americans”. Recall that at the last hearing of a Democratic President-appointed judiciary, Elena Kagan said, “We are all originalists” without Senator Coons or any other Democrat pushing them back.

Most Democrats’ poll lines were also unapologetically politically oriented – so much so that the confirmation hearing at times resembled a health law hearing. Frame-by-frame of an American with a disease that Democrats claimed was only the Affordable Care Act was shown on national television. Of course, this focus was partly sparked by election campaigns, but it also implied some sort of case law – one in which good consequences (where good is defined by a progressive ideology) should guide the resolution of constitutional cases.

Even Senator Sheldon Whitehouse’s insane theory that the Trump nominees were the result of a conspiracy by a group of wealthy donors led by the Koch brothers makes sense in progressive constitutional iconography. If the universe has a moral arc that the Constitution should follow, only evil interests could hold back its natural ascent.

Just as we will not hear from a Democratic President that the “era of great government is over”, neither will we hear from a Democratic Supreme Court candidate that “We are all originalists now”.

This complete division of justice predicts a bumpy road for the Court and the nation. It is a difference that cannot be masked by some methods that, if practiced consistently, might once have promised a major bipartisan agreement. Originalism is not jurisprudence to restrain the judiciary, but jurisprudence that affects the meaning of the Constitution, at least when the original methods allow judges to come to a clear and convincing resolution of that meaning. And the democratic senators believe that progressive jurisprudence only promotes restraint if the legislative goals are progressive. Progressive jurisprudence is also not interested in protecting precedents in general, only progressive precedents. At the hearing, Democrats clearly wanted Roe to be maintained v Wade, but many other precedents, such as Shelby County v Holder and Citizens United, have been overridden due to their poor (progressive) results. The question of what role precedents should play in originalistic jurisprudence is unclear, but originalists generally agree that in many cases they need to take a back seat to the original meaning.

Democrats who justify packing in court often do so because of the alleged injustice of the trial, which Merrick Garland has not upheld and will still send Barrett to the Supreme Court. The real reason, however, is the legal divide that separates them from many, if not a majority, of the originalist judges now standing before the court. At a time when progressives in the Democratic Party are on the rise, they consider the Court to be an intolerable bastion of reactionaries who look back on their principles according to their principles. And even if the court is unlikely to make it through Congress if elected, Biden will appoint judges who are much more committed to progressivism than most Democratic candidates in the recent past. Just as we will not hear from a Democratic President that the “era of great government is over”, neither will we hear from a Democratic Supreme Court candidate that “We are all originalists now”.

Justify originalism

The constitutional conflict revealed at the hearing also has implications for the debate about how we should justify originalism. Will Baude and Stephen Sachs, two brilliant young scientists, have proposed a positivist basis for originalism. They argue that we should follow originalism because it is law in the sense that the great positivist HLA Hart meant law. That is, originalism is the rule of recognition by which officials make the law. While Baude and Sachs admit that there may be disagreement about what exactly originalism requires, they claim that there is a consensus among judges in their favor. They base their views largely on the opinions of the Supreme Court, in which they argue that judges – even modern left-wing liberals – point to originalism. Mike Rappaport and I have criticized this argument, pointing out that in many important cases judges have failed in good faith to follow originalism.

However, judges are not the only officials responsible for setting the contents of the constitution, Baude admits. Lawmakers and presidents are also senior government officials who are constantly making such decisions and implicitly or explicitly accepting a recognition rule. And the recognition rule that guides the major Democratic Party officials today is emphatically not originalism. This sociological fact (and Hart’s legal conception is ultimately rooted in such facts) also speaks strongly against the idea that there is an official consensus in favor of originalism.

This lack of consensus does not mean that we should give up originalism. Originalism is certainly a major contender for the recognition rule, as Michael Ramsey noted, and the Supreme Court has consistently followed it at times in our history. But to justify originalism as the strongest contender, we must rely on normative arguments such as those put forward by Mike Rappaport, myself, and others. Originalism is the best rule for interpreting the Constitution, even if some differ.

The difference between our parties on this fundamental question for our Basic Law makes such normative remedies even more important. They are the kind of arguments that can help restore a consensus on originalism and make the Constitution an anchor of stability rather than a source of party political hostility.

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