On the Judiciary
America’s constitutional order is under threat. Let me explain: it is a maxim of history that all societies develop norms to give them order since no society can operate in a state of lawlessness. The law is the most formal of those norms, which involve the application of the coercive power of the state and the relations between citizens. In the American order, our juridical tradition operates on recognizing individual rights, the rule of law, the separation of powers, and the principles of limited government.
In other words, those principles noted above are the basis of what can be defined as the American Constitutional orthodoxy. Orthodoxy has been defined, for example, by the English historian Hilaire Belloc, as a series of principles in an autonomous system that mutually sustain each other and merge to form a coherent whole. The introduction into that system of an alteration alien to it, while leaving most of it intact, may be understood as constitutional heresy or error. In the United States, the error that infected our constitutional order is the idea that judges should interpret the law to produce the results they want. That error is called judicial activism or living constitutionalism.
In the American context, each branch of power in our tripartite government has a particular function. The legislature can create positive laws, the executive branch carries out the laws, and the judicial branch interprets the laws without seeking to alter the will of the people’s elected representatives. This is how our constitutional orthodoxy is supposed to function so that citizens can maintain control over their government.
For most of American history, it was so. As Ilan Wurman explained in his book, A Debt Against the Living,originalism as a judicial philosophy had not been articulated during a significant part of the Republic’s history because it was unnecessary. Judges interpreted the law based on the text and the intent of legislators. The juridical philosophy that espoused this was called legal formalism. And though it was not always followed (some early examples of judicial activism were Dredd Scott v. Sanford and, to this day, the Insular Cases), judicial activism was the exception rather than the norm.
With the rise of the Progressive Movement, ideas heretical to the American experiment began to develop in those enemies of tradition and judicial restraint, the intellectuals. Slowly, the idea began to gain ground that the American Constitution was outdated. The idea was that the Constitution had to be altered to fit the times. That is not necessarily heretical, but what was anathema to the constitutional system is that the proposal was not to amend the Constitution but to interpret it in a way divorced from the intentions of the Founders.
This error’s time eventually came, first during the era of Woodrow Wilson. Then, after the rise of the New Deal and the ever-growing presence of the state (with its centralization and accumulation of power), President Franklin D. Roosevelt required, or demanded, the acquiescence of the Supreme Court in his reinterpretation of the Constitution. For instance, to achieve his policy goals, Roosevelt sought to transform the Supreme Court into an activist body rather than one that adhered to judicial restraint. One way Roosevelt sought to coerce the Court into his preferred judicial activism was his attempt at court packing, which mercifully was defeated. Yet, as we know, this error remains potent in the American Left to this day.
Roosevelt’s push for judicial activism undermined the balance of powers, eroded the autonomy of the states, and expanded the scope of the federal government beyond its intended limits. By advocating for an expansive interpretation of the Commerce Clause, Roosevelt and his administration paved the way for an unchecked growth in federal power, which conservatives and originalists argue, rightly, has weakened individual liberties and limited the ability of states to govern themselves. Though foiled in his Court-packing scheme, Roosevelt did manage to intimidate the Justices to rule his way more often, and by outlasting many justices thanks to his long tenure in office, Roosevelt also managed to have numerous appointments to the judicial branch, which helped him to alter the balance in favor of the Left and judicial activism.
In a few words, thanks to FDR’s presidency, the old consensus on formalism and restraint was ended forever. The proper functioning of the judicial branch was broken, and as such, the separation of powers and its balance was unhinged. The result of the rise of judicial activism was the justification for an ever-increasing role and power for the federal government. Some of the consequences were the prohibiting of organized prayer in schools in Engel v. Vitale, the creation of additional burdens for law enforcement in Miranda v. Arizona when the Court found rights in the “penumbra” of the Constitution, and the discovery, as a sequel, of a “right” to abortion on demand for almost any reason in Roe v. Wade and Doe v. Bolton. This is the worst case of judicial activism in American history that led to the destruction of countless unborn lives.
The legacy of living constitutionalism in America has been the erosion of our constitutional order, the complete nationalization of our politics, the disempowerment of our citizenry, the growth of the federal government, etc.
Once the effects of this judicial activism and liberal order were allowed to run their course for many a decade, it became obvious that judicial restraint had to be restated and recovered to counter the challenges of judicial activism. As such, as has been recounted by Matthew Continetti and others, there came the rise and organization of the philosophy of originalism in constitutional matters and Textualism for laws. The basic premise is that law, as in all documents meant for public application, has a meaning that is intended to be communicated to the public and obeyed. Words mean what they were understood to mean at the time of their writing and formation into a legal document, and as such, they are meant to be followed according to that original public meaning. To behave otherwise is to exceed the limits of judicial power and impose on citizens the preference of judges.
Originalism began its counterattack during the 1980s, with many setbacks and disappointments, but simultaneously with cumbersome progress. As Dan McLaughlin has explained there has come a point in American history in which originalism has won the intellectual battle. All judicial nominees must, at least, pay lip service to being originalists when being considered in the Senate for confirmation to the Supreme Court. In other words, at least intellectually and in the Court, it seems that originalism has won out. Not only that but with the Court’s decision in Dobbs v. Jackson Women’s Health Organization, a masterpiece of originalist jurisprudence, it seems that the triumph of judicial restraint, if not complete, is progressing marvelously.
Yet appearances can be deceiving, and there are many dangers ahead. originalism is still not understood by many, the popular culture is hostile to it.
The institutions of education are how culture is transmitted between generations; he who controls education will form the fashion and culture of the future. For that reason, the progressive Left has, historically, been very much in favor of expanding secular education and creating curricula that sustain their errors and spread them to the next generation. This is part of why the Left has insisted on including topics such as “Critical Race Theory” and “Queer Theory” in school curricula.
The Left has had success, and as such, popular culture and fashion are always opposed to conservatism, traditionalism, and, in the case of constitutional law, originalism. Because the Leftist view dominates academia and culture, one can safely assume that the judicial activists, with their living constitutionalism, are simply biding their time for a chance to retake the Court, be it through Court packing or outlasting the current originalist majority. As such, conservatives must realize that the judicial victories of recent years resulted from a historical accident that is not guaranteed to repeat.
Donald Trump won in 2016 unexpectedly, and that single event prevented the Left from reshaping the Supreme Court in their favor. But the election could’ve easily gone the other way. Moreover, the Republican Party is unpopular under Trump, and as such, there is a possibility that it will keep losing elections with him at the top. Additionally, Justices Clarence Thomas and Samuel Alito are getting older, and, taken together with the risk of the Left winning in 2024, the originalist majority in the Court is at risk. In other words, the originalist victory may be fleeting. Unfortunately, in the current climate, the permanence of an originalist view of the Constitution and the restraint of the federal government in its proper sphere is unlikely, as the Left dominates the culture, and time could be on their side.
Since the progressives dominate American culture, with some recusant remnants spread here and there that give oxygen to the conservative opposition, despair on the Right lets us discern where another heresy of the American constitutional order might arise. Some on the Right have begun to question the entirety of the American Founding and its constitutional tradition. Such was the case of heresies such as the independent state legislature theory or John Eastman’s theories. This miniature facet of the Right wishes to interpret the Constitution in a new form of judicial activism. Though it is a small clique of thinkers for now, the spread of bad ideas and errors have consequences further along the road unless these are countered, which is why the Court’s decision in Moore v. Harper, though highly imperfect, is a welcome development. Currently, the risk is that at the moment of apparent triumph for originalism, the political forces which sustain it will fall into an ideological civil war amongst themselves, wasting energies in asinine battles and therefore giving an opening for the Left to return their judicial and governmental views to the forefront of American government.
The simple fact of American history, tradition, and society is that a Constitution unmoored from its history, text, intention, or original public meaning, which means whatever the momentary governing faction wants it to mean, is a pointless document. An error utterly contrary to American history and tradition is why an attempt of the Right to reject the Founding is as grievous as one by the Left.
So, how do we deal with these errors in the near, medium, and long terms? Changing the popular culture takes generations. The first step is for conservative states to continue to govern wisely and maintain their political power. In possible spaces, conservative statesmen must promote legislation to increase civics education and rebuild a culture of patriotic affirmation and a correct understanding of the constitutional order. This will produce results in the long run while capable of being achieved, in part, in the short run. For the most part, conservatives must seek to retain power nationally as much as possible to limit the damage the Left can unleash on the nation. That means getting control of the Senate, at least.
In short, conservatives must always resist the fashion of the age and seek to preserve America’s sanity and constitutional order against all threats. Only time will show if American orthodoxy and tradition can be preserved.