The Lost Culture of Originalism

Unfortunately, the twentieth century witnessed the collapse of the culture of originalism, which in substantial measure furnished the rule of law in constitutional cases, and the rise of non-originalist theories that justified, indeed celebrated, judicial discretion. If courts are going to decide abortion and same-sex marriage cases on the basis of their values or their perception of evolving values, the confirmation process will simply be confirming judges possessed of the values one favors.

Thus, I cannot agree with Clint Bolick that we should focus on appointing judges who will pursue a freedom agenda. I am myself a classical liberal and I am sure I would like the results of their decisions as a policy matter. But unless they also coincided with an accurate reading of the Constitution, I cannot approve of them as a constitutional matter. Our constitution creates a framework for government for people of differing values in many respects. The way to change that framework is to pass a constitutional amendment. Appointing judges who follow originalism will make it easier to engage in such a constitutional politics, which is where the politics of the Constitution should reside, not in judging.

While I agree with Professor Teter that reform to Senate rules may help confirm better judges, it will not address the root of the problems that make confirmations so contentious. The power of the federal government includes the discretionary authority of federal judges. That has been on the rise since the New Deal began the decline of originalism. It was exacerbated in the Warren and Burger Courts. It is hardly a surprise that in the aftermath of this transformation that our confirmation fights have become so bitter. So long as the Constitution is thought to be a vessel for updating the Constitution to capture the best values, the confirmation process will remain a matter of greater controversy.

In his response to John Lott’s reply, Professor Teter suggests that an “activist” judge is one who is willing to set aside the results of democratic decisionmaking. But that description is also the definition of a judge who is following his or her constitutional duty.  Judicial review has bite only if judges decline to follow the enactments of the political branches when they violate our fundamental law, as well as uphold those enactments when there is no violation. Judges who require the federal government to respect its enumerated powers are no more “activist” than those who require the government to respect the Bill of Rights.  

Also from this issue

Lead Essay

  • John R. Lott, Jr. lays out the evidence that the judicial confirmation process is broken. Nominations are taking longer on average. They’re growing nastier. And Lott’s research shows that the most objectively qualified nominees are the ones who have it worst. The reason why is easily understood: Other things being equal, no one, whether a Republican or Democrat, wants to see the smartest, most persuasive of one’s ideological opponents on the bench. Lott’s remedy is a familiar one to libertarians: Reduce the size and scope of judicial activity in all of our lives. Lower the stakes, and the conflict will ease. This, though, can only be done by reducing the scope of the federal government itself.

Response Essays

  • Michael Teter agrees that the judicial confirmations process is broken, along with much else about the legislative process. The whole thing, he argues, is a problem. But to him, the root of the problem isn’t big government: Teter argues that the rules and norms of the Senate delay action in a wide variety of areas, and not the growth of government. He describes the recent end of nomination filibusters as a good step toward fixing the problem, and he recommends further changes that will speed up the appointment of judges.

  • Clint Bolick agrees that the growth of government has made the judiciary more influential. But he recommends that libertarians take advantage of the opportunity it presents: Advocates of economic and personal liberty have lately enjoyed some measure of success in the courts, thanks in part to organizations like the Federalist Society, which has done much to promote qualified judicial candidates. We owe it to ourselves to capitalize on the importance of the modern judiciary.

  • John O. McGinnis argues that the real problem with our courts lies in their lower echelons: The Supreme Court consists of manifestly qualified and able judges, all of whom attended our top two law schools, among their other impressive qualifications. But at the lower end, the public isn’t paying attention, and nominees who are otherwise qualified can be sunk for political reasons. McGinnis applauds the elimination of the filibuster for nominations, but he suggests that a cultural change may also be in order: the return to originalism in judging and legal scholarship. Although an originalist judge may have some latitude for interpretation, that latitude is greatly reduced when compared to a living constitutionalist judge. This, McGinnis suggests, will reduce politicking on the courts.