Politics & Policy

The Originalist Quest

And the question of judicial activism.

About four years ago, I was on the receiving end of some querulous reader e-mail. The Ninth Circuit federal appeals court in California had sent some social conservatives into orbit: ruling that there was no fundamental parental right to control the content of sex-education instruction in public schools. I made the mistake of agreeing with the ruling in a post on the Corner.

It wasn’t that I failed to grasp the equities. Judges, and the Ninth Circuit in particular, are notorious for creating (or “discovering”) new constitutional rights as necessary to advance the leftist agenda. Why not a little substantive due process for our side, too? Except, the point is that we don’t want politically insulated judges imposing any agendas. We just want them to interpret the law as it exists. If our law is out of sync with our preferences — if parents believe that they, not school boards, should control the content of sex education — there’s a legitimate way to remedy the problem: Win the public debate and pass a law. To judge by my mailbox, this was not a popular suggestion, but I still think it was the right one.

That experience leapt to mind a few days ago when the New York Times published a characteristically thoughtful op-ed by NR senior editor Ramesh Ponnuru. Taking stock of a couple of this term’s most significant Supreme Court cases — both involving post–Civil War amendments adopted primarily to address racial inequality, Ramesh cautioned conservatives against cheerleading for right-wing judicial activism. As NR’s Jonah Goldberg observed, the argument is a new variation on “Originalist Sin,” a more in-depth essay about conservatives and affirmative action that Ramesh wrote for NR in 2003.

Though I disagree with aspects of Ramesh’s argument, I applaud him for making it, and I’m perplexed by some of the criticism he received on the Right (see, e.g., this post from Wendy Long, of the Judicial Confirmation Network, of whom I’m an ardent admirer). The 13th, 14th and 15th Amendments are challenging for those of us who adhere to “originalism,” the jurisprudential theory that legal provisions must be construed in accordance with what they were understood to mean at the time of their adoption. The controversy centers on whether these post–Civil War amendments were truly meant to implement an official policy of colorblindness. We would like to believe they were — particularly if we are originalists; for if they weren’t, we must acknowledge that the Constitution countenances discrimination.

I confess I’ve never understood why that would be so explosive a conclusion. The Constitution is a framework composed of (among other things) baseline guarantees. From that threshold, our society has broad deference to legislate and regulate our lives as we see fit. Therefore, the Constitution should countenance a lot of things that are bad, or at least foolish. It doesn’t mean those things will necessarily happen or that, if they do happen, we can’t reverse them. That’s what freedom is all about, and freedom is what the Constitution promotes.

Moreover, we know for a certainty that the Constitution at one time countenanced slavery. It would hardly be shocking, then, if it turned out that the Constitution countenanced the lesser evil of discrimination in the transitional post–Civil War period — a phase during which our society at large plainly tolerated discrimination but was also free to end, and did indeed undertake to end, discrimination by legislation. Yet, in our still racially charged society, to admit such a possibility is to be expelled from polite society.

Political correctness having infected our law, we have bollixed ourselves into a fix where: (a) nothing bad can be constitutional; (b) racial discrimination must therefore be unconstitutional; (c) the post–Civil War amendments are how the Constitution addressed the evil of racial discrimination; (d) the post–Civil War amendments must therefore have been meant to end all racial discrimination; (e) if the originalist doubts that this was the original understanding of the amendments or, worse, rejects such a contention, that somehow turns out to be not a sad reflection of flaws in post–Civil War society but a fatal problem for today’s originalism as an algorithm for construing the Constitution.

As it happens, I believe there is a credible originalist argument for the proposition that the post–Civil War amendments were understood as an effort to usher in a colorblind society. That’s clearly how Supreme Court Justice John Marshall Harlan understood them. That they failed to be universally accepted as such does not negate that this is what they meant. But I do wish it did not seem so crucial to prove that this is what they meant.

Alas, the analysis is freighted by two sets of self-serving aspirations. The political Left wants an open field to enact its agenda through the courts, and is thus obsessed with discrediting originalism — acceptance of which would delegitimize judicial activism. For our part, originalists want to be welcome in polite society and are thus anxious to show that our interpretive method can get to the same admirable policy results reached by the Left’s unconstrained activists. But these antagonistic aspirations should have no bearing on our perception of reality: Judicial activism is still wrong in a democracy, originalism is still the only legitimate way for unaccountable judges to construe positive law, and racial discrimination is still immoral and proscribed (or at least proscribable) in our society, regardless of whether the proscription was accomplished by the post–Civil War amendments.

In any event, Ramesh is quite correct to spotlight the constitutional underpinnings of colorblindness. If they are adequate, we should be able to articulate why, coherently. If they are wanting, we should be championing legislation that forbids all odious discrimination — particularly discrimination that divides us along racial lines.

The matter is especially pressing. On Monday, the Supreme Court will decide Ricci v. DiStefano, the affirmative-action case involving New Haven firefighters discussed in Ramesh’s op-ed. In about two weeks, confirmation hearings will begin for President Obama’s Supreme Court nominee, Judge Sonia Sotomayor — the judge whose decision upholding the race-based denial of promotions to the firefighters is under review in Ricci, and whose controversial public speeches maintain that judges can legitimately choose to see or ignore various facts in litigation based on their race, ethnicity, sex, or life experience.

So I think it’s vital for conservatives, and particularly originalists, to take up the challenge Ramesh has posed. I plan to explore three general aspects of it here on NRO in the coming days.

First, I don’t agree with Ramesh’s critique of the other case discussed in his op-ed — the recently decided Voting Rights Act (VRA) case of Northwest Austin Municipal Utility District Number One v. Holder. Specifically, I demur from his contentions that: (a) the justices were remiss in failing to analyze “historical evidence about what the ratifiers of the 15th Amendment intended,” and (b) Justice Thomas’s dissent, which would have invalidated the pertinent VRA section, is indicative of an activist usurpation of Congress’s role. Second, I don’t believe Ramesh’s rendering of originalism adequately conveys the primacy of text (i.e., the words of the provision being interpreted) for the originalist. Finally, I don’t think the historical evidence that the 14th Amendment mandated colorblindness is as weak as Ramesh believes it is. To be sure, it is not overwhelming nor does it disprove all contrary claims, but I do think it is adequate to support a credible originalist rationale for colorblindness.

Naturally, this sort of treatment emphasizes disagreements and obscures harmony. So I want to stress that I agree with Ramesh that right-wing judicial activism is to be avoided, that judicial restraint is a key component of the separation of powers on which our system depends, and that conservatives need to have a convincing theory about what the post–Civil War amendments prohibited. Again, agree or disagree, Ramesh does us a valuable service by calling for intellectual rigor, and by applying his own.

– Andrew C. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad (Encounter Books, 2008). 

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