Bench Memos

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Sage Words, Gerry


Gerry Bradley, that is, and the words are these: “[L]iberals cannot agree upon a reflective account of how to get where they know they are going: they lack a satisfactory theory of constitutional interpretation.”

This highlights what is perhaps the most salient difference between conservatives and liberals today regarding constitutional interpretation–for conservatives most certainly do have a theory, and a wholly satisfactory one, namely originalism.  It is not a flawless theory, or at least not a wind-up machine of utmost simplicity: it is not self-executing, and its practitioners have sometimes markedly different conclusions about the Constitution’s meaning.  But it has at least three advantages.  First, it supplies interpreters with a common vocabulary and a set of common premises for the beginnings of constitutional reasoning.  Second, it is the only interpretive method that supplies even potential safeguards against the judicial abuse of the Constitution and the rule of law.  And third, its principles, honestly applied, force the interpreter to set his politics aside as irrelevant to the interpretive task.  With respect to that third point, the close coincidence of originalism with conservatism today is largely just that–a coincidence, an accident of history driven by the fact that judicial activism in the last half century has been 95% a liberal enterprise.  While there are some few political liberals who are also originalists, I can think of no constitutional interpreters with conservative politics today who are not also originalists.  That means that all those who reject originalism are on the left.

Where does that rejection leave them?  Just where Gerry said they are–without a satisfactory theory of what they are doing, without any principles that are recognizable as constitutional ones, without any coherent arguments against judicial tyranny even in the cases whose results repel them.  Welcome to constitutional nowhereville.


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