Even before their Election Day drubbing, conservatives had begun to reexamine their positions on a variety of issues. Conspicuously absent from the intramural debate, however, has been "originalism"--the theory that judges should decide constitutional cases in accordance with their best estimate of the original public meaning of the constitutional provision at issue. While positions on health care reform or foreign policy may be subject to revision, originalism faces little challenge among conservatives.
Recent articles by two Republican-appointed judges, however, identify a fault line along which intra-conservative debate could arise. Each focuses on the Supreme Court's recent decision in District of Columbia v. Heller, where the Court struck down the District of Columbia's draconian regulation of handguns by a vote of 5-4.
At the crux of Heller was the Second Amendment's curious construction: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Undertaking an originalist review of the Second Amendment's text and history, Justice Antonin Scalia's opinion for the Court concluded that the "well regulated Militia clause" was merely a "prefatory clause," which could not limit the amendment's subsequent "operative clause," and that the D.C. handgun ban violated the right protected by the Second Amendment. In dissent, Justice John Paul Stevens conducted his own review of the Second Amendment's text and history and reached diametrically opposite conclusions.
Most conservatives celebrated Heller, but Judge J. Harvie Wilkinson manifestly did not. Appointed to the U.S. Court of Appeals for the Fourth Circuit by President Reagan, he long has been regarded as one of the most respected conservatives on the federal bench; he was short-listed for a Supreme Court appointment in 2005. His critical essay, forthcoming in the Virginia Law Review, bestows upon Scalia's opinion the most scathing condemnation known to conservatives: comparison to Roe v. Wade.
Rejecting Scalia's originalist analysis, Wilkinson asserts that "the constitutional text did not clearly mandate the result, and the Court had discretion to decide the case either way"; he calls Scalia's analysis "an exposé of original intent as a theory no less subject to judicial subjectivity and endless argumentation [than] any other."
Wilkinson argues that the Heller and Roe decisions share four fundamental flaws: Each (1) manufactured controversial rights not clearly established by the text of the Constitution, (2) threw the courts into a "political thicket" where they will "decide contentious questions without clear constitutional guidance," (3) failed to allow legislatures to make the difficult factual or value-laden judgment calls for which they are uniquely well suited, and (4) disregarded the value of reserving such contentious issues to state and local authorities rather than deciding them at the national level.
Wilkinson's specific criticisms are open to challenge. In arguing that Heller settles the constitutional question at the national level, for example, Wilkinson assumes, with little justification, that the Court will apply Heller against state laws, and not merely against federal laws.
But Wilkinson's specific criticisms are overshadowed by a broader criticism of originalism per se: that Scalia's exclusive reliance on originalism disregards a host of other longstanding conservative values, such as "textualism, self-restraint, separation of powers and federalism as well." Heller, he argues, "has left only originalism as the foundation of conservative jurisprudence. A set of reasonable tenets each providing a separate check on judicial activism has now been replaced by a singular focus on original understanding."
The second major conservative criticism of Heller is found in Judge Richard Posner's "In Defense of Looseness," published in the New Republic. Posner, appointed to the U.S. Court of Appeals for the Seventh Circuit by President Reagan, is a longstanding critic of originalism, preferring instead a version of legal "pragmatism" rooted in the jurisprudence of Justice Oliver Wendell Holmes Jr.
Like Wilkinson, Posner offers a narrow criticism and a broad one. Narrowly, Posner criticizes Scalia's originalist analysis in Heller, arguing that a truly "originalist" analysis--unlike what Posner sees as Scalia's "pretense of engaging in originalism interpretation" to achieve political ends--would have led the Court to affirm the D.C. handgun ban, not invalidate it.
More broadly, Posner argues that "originalism" is inconsistent with the judicial methodologies espoused by the legendary William Blackstone and Chief Justice John Marshall. Blackstone and Marshall are foundational figures in American law: Blackstone's Commentaries on the Laws of England was the single most important legal treatise at the time of the Constitution's ratification, and Marshall largely created the Supreme Court as we know it today.
Like Wilkinson's essay, Posner's specific criticism of Scalia's Heller opinion is open to challenge; legal scholars Matthew Franck, Ed Whelan, and Jim Lindgren have subjected Posner's essay to intense scrutiny.
But Posner's broader argument, as corrected and supplemented by Franck's analysis, is an important one: Blackstone's Commentaries expressly embraced the notion that judges should decide cases according to not only "the words, the context, [and] the subject-matter" of the constitutional or statutory provision at issue, but also "the effects and consequence, or the spirit and reason of the law."
Wilkinson's and Posner's essays already have attracted much attention, including an analysis in the New York Times. But by focusing almost exclusively on Wilkinson's and Posner's criticism of Heller's specifics, the debate has paid not nearly enough attention to their more important challenge to originalism per se.
As Wilkinson recognizes, Heller marks the culmination of originalism's remarkable three-decade march from obscurity to dominance among legal conservatives. Prior to originalism's ascendancy in the 1970s and 1980s, conservatives espoused a variety of competing (and often contradictory) values: natural rights, deference to legislative judgments, notions of federalism, and other prudential or pragmatic themes. For example, James Bradley Thayer, a well-respected Harvard professor, wrote in 1893 that courts should not strike down a statute as unconstitutional unless the statute unquestionably violates the Constitution. (Wilkinson echoes Thayer, writing, "When a constitutional question is so close, when conventional interpretive methods do not begin to decisively resolve the issue, the tie . . . should go to the side of deference to democratic processes.") Justice John Marshall Harlan II strongly defended federalism against the Warren Court's nationalist onslaught. And Learned Hand and Henry Friendly, two legendary twentieth-century federal judges, each constructed a body of pragmatic and prudential analysis that deferred to popular majorities in many cases but defended counter-majoritarian rights in others.
The specific precepts of each of the "conservative" theories of judicial decision-making changed over time, just as conservatives' positions on most issues have changed over time, but each has sought to answer a straightforward question: What to do when the controlling legal text's meaning is unclear? Of course, virtually all conservatives agree that when the words of the law are clear, then their meaning should be given effect. But when--if ever--should judges conclude that a legal provision is unclear, such that nontextual considerations should come into play?
Most originalists would vigorously dispute the suggestion that constitutional or statutory provisions are so ambiguous that their original meanings cannot be given effect. (Judge Robert Bork once created controversy by suggesting that the Ninth Amendment, which alludes to unenumerated rights "retained by the people," was an unenforceable "ink blot"; few have embraced his argument.) But in the past, conservatives have been more receptive to the notion that legal texts often incorporate ambiguity, either by accident or by design, and that nontextual considerations must guide the judge's application of those laws in particular cases.
With Scalia and Justice Clarence Thomas, originalism has benefited from the service of two sharp-minded and eloquent spokesmen on the national stage. With the recent additions of Chief Justice John Roberts and Justice Samuel Alito, however, the Court now includes two conservatives who do not appear to be "pure" originalists and who may provide, over the course of their tenures, a visible alternative to Scalia's and Thomas's versions of originalism.
Roberts, for example, may resemble Scalia or Thomas less than he does the aforementioned Judge Friendly, whom Newsweek described as Roberts's "role model," for whom he speaks of "deep reverence" and with "a certain twinkle in his eye." Similarly, as Terry Eastland reported in 2005, a young Alito drew his inspiration from Yale's Alexander Bickel--a proponent of judicial restraint and a self-described "Whig," but by no means an originalist.
Although Roberts and Alito joined Scalia's opinion in Heller, there may come a day when one or both of them part ways with Scalia and Thomas in a high-profile case over a question of constitutional or statutory ambiguity, basing their opinions on nontextual considerations disfavored by originalists. Such a disagreement may well be the only event capable of reigniting vigorous debate among conservatives on the question of judicial philosophy, Wilkinson's and Posner's -critiques notwithstanding.
Adam J. White is an attorney and writer in Washington, D.C.