Law & the Courts

Why the Left Won’t Take Up Originalism

Brett Kavanaugh is sworn in prior to testifying before the Senate Judiciary Committee, September 27, 2018. (Tom Williams/Pool via Reuters)
Political process can give progressives only some of what they want.

Earlier today, I was reading our friend John Yoo on the question of whether the Constitution forbids discrimination on the basis of sex. It doesn’t. You can comb the document as carefully as you like, and there isn’t anything in there about that. Feminists have long implicitly acknowledged that, hence their pursuit of a constitutional amendment prohibiting it. (Most versions of the so-called equal-rights amendment would do a good deal more than prohibit discrimination.) But the Constitution’s silence on the question has not prevented the Supreme Court from determining, ex nihilo, that the Constitution does somewhere contain a prohibition against sexual discrimination, albeit one written in invisible ink known only to the eyes of the initiated.

As usual, Yoo is a model of clarity:

The point of originalism . . . is not whether the right in question is good or bad, but which institution of government should make the decision. If you believe, as I do, that discrimination based on sexual orientation is not prohibited by the Constitution, that does not end the matter. The Constitution simply moves the issue to the political branches of the federal government and the states. The president and Congress can ban such discrimination by the federal government — as it recently did with the repeal of “don’t ask, don’t tell” — and the states can make up their own minds.

Yoo quotes Antonin Scalia on the same question:

If indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey, we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore? That’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.

With Brett Kavanaugh confirmed to the Supreme Court, many conservatives would say that the Court now has a 5-4 majority of originalist justices (Chief Justice Roberts may rightly be regarded with some suspicion on that); many of our progressive friends instead would insist that what the Court has is a 5-4 majority of right-wing justices, justices who are too privileged, too male, and too white (Representative Bennie Thompson, a Mississippi Democrat, denounced Justice Thomas as an “Uncle Tom” on New Nation of Islam radio) to reflect the needs of an increasingly diverse American society with its own emerging and evolving sense of justice. That was the basis of President Obama’s declaration that he wanted judges guided by “empathy” rather than by anything so narrow and fusty as the law. (Never mind that “empathy” is a literary device; it is a word that, like “gender,” has made its way into the lexicon of a civil discourse that no longer distinguishes rhetoric from real things, conflating words about life with words about words.) Of course, all that is really just a moralistic way of saying: “We want justices who are aligned with us politically and culturally, and who will give us what we want, irrespective of what the law says.”

Given the new composition of the Court, progressives have an opportunity to rethink that position.

The Constitution is silent on many questions: sexual discrimination, as Yoo notes, but also abortion, homosexuality, irreversible sex-reassignment procedures for minors, and many of the other so-called social issues. The conservative position on the process by which these questions should be addressed (as distinct from the substance of the questions themselves) is that the legislatures must speak where the Constitution is silent. That is not a particularly radical view. (It is not nearly so radical as, say, President Obama’s insistence that the character of the law is mystically dependent upon some agreed-upon set of demographic features associated with those who preside over federal courts.) A more scrupulously originalist (or textualist) approach would have prevented some bad decisions with bad outcomes (Roe) but — as conservatives should frankly admit — some bad decisions with good outcomes, Brown v. Board among them.

As a matter of historical (and counterhistorical) debate, the question of Brown and similar decisions presents us with two main avenues of inquiry: Conservatives may rightly point out that the nation probably would be far better off if the matter of segregation had been handled mainly through ordinary legislative channels, especially in the state legislatures; relying on democratic processes produces more social buy-in, less division, and more organic accommodation of differing views — and the latter is important inasmuch as the different views in question were not limited to white supremacy vs. racial equality but also included enduring questions about the nature and structure of our federal enterprise, the relative role of the federal and state governments, and more. Fair-minded progressives might concede all that and yet still insist that waiting on democratic remedies would have meant inflicting injustice on (in the case of Brown) another generation of vulnerable children who were being victimized in a despicable way in the service of a contemptible philosophy. Without Supreme Court intervention, they say, it is entirely possible that many of those evils would still be with us. And progressives are not wrong about that — it just isn’t a legally or constitutionally relevant consideration.

The Left and the Right face the same quandary and the same temptation. Where the Constitution is silent, we have two choices: We may address the question through the political process, or we may rely upon the Supreme Court to invent a constitutional pretext facilitating our desired policy outcome. Progressives have long relied on the latter approach; given the likely direction of the Court in coming years, one might think that they would be rethinking their commitment to judicial activism. But they are not. Instead, their big ideas at the moment are court-packing and legislature-packing, or else impeaching a few of the justices they do not like if and when they should again control enough Senate seats to achieve that.

Why not rely on the political process? Why insist on inventing constitutional mandates that do not exist — especially when sticking to that approach is more likely for the moment to produce conservative outcomes rather than progressive ones?

To understand why that is requires understanding the basis of the progressive commitment to judicial activism. That commitment is not only (or even chiefly) about achieving policy outcomes that would be more difficult to secure through ordinary political means. Judicial activism is about social domination, which progressives seek and covet as an end in itself independent of the particular policy outcomes associated with it. In a society as prosperous as ours, the most desirable goods are metaphysical ones: status, power, privileges, rank, approval, and other fringe benefits of the soul. (Airlines, bless them, may be the worst-run businesses in the world, but they are bracingly honest about the fact that some customers have status and some do not. Status is from the Latin word meaning standing, and if you want to know your status at the check-in counter, your standing determines physically where you stand, the metaphorical and the literal united at last.) A great part of the Left’s social politics are not about policy questions at all — they are about the enjoyment that one derives from the act of humiliating those one hates. Hence the Left’s mandatory-participation model of politics: Abortion will not only be legal, but those of you who object to it will pay for it and thus participate in it; you nuns, elderly and celibate though you may be, will purchase and subsidize contraception to which you object; you critics of global-warming policies will be investigated as criminals and legally punished for your dissent; etc. Social domination is a consumption good, the psychological equivalent of getting a massage. And that is why it is not enough for the Left to join forces with like-minded conservatives such as John Yoo when an opportunity presents itself, as it did in the matter of homosexual marriage.

To win an election is not sufficient — it is much more satisfying to be revealed as one of the chosen by capital-H History, which progressives always are declaring themselves to be on the right side of. (One of the funny consequences of that is that important progressives such as President Wilson and Senator Russell are read out of the progressives’ historical account of their own movement because of the horrible racial views they held.) To win a political victory is one thing — a relatively petty thing — but to have one’s political will and sense of personal identity revealed as a constituent of the foundational bedrock of the nation, blessed by History itself, is a different kind of thing altogether. And that is what the confirmation of Brett Kavanaugh to the Supreme Court threatened to take away from the Left, which is why their campaign against him was conducted with such hysteria. Some conservatives noted that it resembled religious fervor, but it did not resemble that: It was not something like religious fervor but actual religious fervor, the thing itself.

Which is to say, the Left will not take up originalism because the political process can give progressives only some of what they want. Democracy may provide the policy outcomes they desire, but progressives desire much more than that. They desire domination for its own sake, as a source of pleasure, and that domination grows more desirable the more closely the instrument of domination resembles a religious body: e.g., wise men in black robes interpreting an occult text inscrutable to the uninitiated, who, being profane and outside the clerisy, cannot read between its lines. Sicut erat in principio, et nunc, et semper, et in sæcula sæculorum. 

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