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.