The Corner

Originalism & Populism

Brad Short writes:

Ramesh didn’t take care of everything though.

There is still this problem: if the Constitution

originates even with a huge super-majority, if all

that makes that super-majority right is its

super-size, then we are still left believing in

something that is nothing more than “the might of the

great mass of the overwhelming majority of the people

makes right.”

So American Constitutionalism must be something

more; originalism must be something more. But it *is*

more. The originalist, as Bork readily admitted in

his arguments with Harry Jaffa in NR back in 1994, is

not required to believe that the people are always

right. All he is required to believe is that *when

the people are wrong, but they have persisted in their

wrong action through all the checks and balances the

Constitution affords to slow down that populist will

we are talking about, it is not the job of the judge

to correct them via his own arrogant ipse dixit.”

That is it.

I think most of the Framers were originalists, or

proto-originalists. To be blunt, I believe that H.

Jefferson Powell was wrong and in reality the original

intent of original intent is pretty much what Bork

thought it was (though Bork should have done much more

historiographical homework in writing his works). So,

what I think the Framers thought was that mankind had

Natural Rights that WERE right. But who gets to

enforce that right? Mind you, we are NOT asking who

gets to DEFINE that right; per Locke, that right

ALREADY EXISTS, it is *found*, not made by the will of

the volk, and the volk would be evil to presume to be

able to will to power a new “right.”

But still, who gets to define the right? Locke

and his intellectual children, the Framers, said “the

people have been given the light of the Natural Law as

much as dukes and viscounts have, if we obey the

Natural Law they shall *all* have the chance to find

the Natural Law and write it into their Constitution

in openly democratic-esque constitutional conventions

and ratifying chambers.” In fact, that the

non-popularly defined Natural Law is first protected

and enforced in a very popular way is *itself* and

article of the Natural Law-it violates Natural Law for

a judge to take all the Natural Law-enforcing power

unto himself by making the Constitution, irrespective

of its words, or even the words in its amendments,

whatever is in his mind. By doing this he is stealing

away from the people their chance to show virtue by

enforcing the right of their own free will. (Note how

Christian and Roman elements are present in that

sentence.)

The idea is that the people, for them to go

through the hard work of convincing as many as are

needed to amend the Constitution, will themselves have

to become deliberative and wise enough that they will

drive out (or at least temporarily beat down) some of

their own populist mob-esque original sin in process,

and that over time the Constitution of the United

States truly will become the best approximation of

Natural Law on earth. The judge, being humble in the

Borkian sense, should defer to *that kind of document*

because it is *that*; not be a moral relativist.

Bork said this, but to his discredit, he was far

too often not clear, and in his grumpiness, he lets

himself sound like a positivist, and sometimes he

should know better and re-read his stuff and see what

he sounds like before he publishes it. But he still

was and is not, in fact, a positivist at all, and your

defense of Borkian judging too is not relativistic,

and not populist or positivist either.

Ramesh began to write up this whole argument in a

book review he did of a book on Oliver Wendel Holmes

by Albert Alschuler a few years back in NR. Also,

that Holmes *did* believe that his “originalism” (if

we can call it that) *was* positivist and relativistic

is reason why you (and Bork) should stop conceding

that Holmes was a good judge. He was an ass AND a bad

judge as well, just ask Ramesh’s teacher Robby George

about how much of a positivist and relativist Holmes

was. To be blunt, George “holds paper” on Holmes and

in public talks (I’ve seen and listened to one of

these he gave here in Manhattan) he does a good job of

showing what a total monster Holmes was and how he

never should have been put on the Supreme Court to

start with.

Me: There are too many arguments here for me to deal with, and this is not my wheelhouse anyway. But I would make a simpler, though in no way contradictory point. “Originalism” makes sense in a Hayekian sense because the utility of rules is twofold. There’s the content of the rules (don’t steal, stop your car at red lights, etc). But there’s also the benefit of having an agreed-upon rule in the first place. Society evolves around rules, the way ecosystems — like coral reefs — build around sunken ships. If the rules are benign, then there’s an obligation not to change them on a whim. Changing the rules is sometimes necessary — abolishing slavery for example — but the procedures for doing so should be clear and open. Whether the Constitution was approved by a supermajority in the 18th century is, to me, a trivial concern. It has been reaffirmed by supermajorities for more than a dozen generations. Populist movements which respect the rules will always be superior to ones which do not. Judges who try to impose utopian or faddish rules on a society without taking into account how settled the old rules are in the culture are usually doing more harm than good. I’ve written about this point a zillion times (indeed, I think you could even call it a “theme” of my writings, if that doesn’t sound to pompous). See here , here and here , for just a few examples.

Jonah Goldberg, a senior editor of National Review and the author of Suicide of the West, holds the Asness Chair in Applied Liberty at the American Enterprise Institute.

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