Tuesday, October 5, 2021
In recent months, in various forums, there have been interesting and important conversations and debates -- involving many Catholic legal scholars, including Gerard Bradley, Robert George, Sherif Girgis, John Finnis, Adrian Vermeule, and several other MOJ contributors -- about constitutional interpretation, "originalism" in its various stripes and also its rivals, the role of the common good and of natural law in judicial decisionmaking, the (in)adequacy of liberal proceduralism, and so on. The upcoming Dobbs case, in particular, has been central to these conversations and debates. Recently, Hadley Arkes (in the Wall Street Journal) and Ed Whelan (at the Bench Memos blog) had some back-and-forths on these topics. (Go here for some links.)
My friend and former student, Eric Hageman, wrote up a short response to Arkes's WSJ piece, and -- with his permission -- I'm posting it below:
My friend and mentor Hadley Arkes writes again to advance his vision for “a better originalism,” decrying the “truncated originalism” of yesteryear and arguing it is insufficient for conservative judges to reject Roe merely because the Constitution contains no right to abort one’s child. Instead, we are told, judges must reach past written law and decide abortion cases based on the immorality of abortion.
Professor Arkes’s proposal ignores the importance of judicial fidelity to written law, and his attacks are effective only against a third-rate version of originalism.
Though Professor Arkes does not tell us how, precisely, the “better originalist” judge would behave, I assume he would decide cases by referring directly to moral reasoning, as a supplement to (if not outright replacement for) the written law. Applied to, say, Dobbs, the opinion of Arkes, J., would uphold Mississippi’s abortion restriction on the ground that one has no moral right to take a life, setting aside the Constitution’s silence on abortion, the possibility that the due process clauses protect unborn people, and the historical and moral contexts of both.
I doubt I’d have any qualms with Justice Arkes’s moral reasoning, but it would have no business in the U.S. Reports. We are a constitutional republic, which means we’ve delegated certain duties to certain offices and their holders. We have given Congress power to make law. (More accurately, we’ve transmitted some legislative power to Congress from the states.) We’ve given federal judges power to resolve cases or controversies. Sometimes, a case requires a judge to decide whether a statute violates the Constitution, which is the superior law. Judges act within their authority by applying the Constitution over the inferior law (or by leaving the inferior law alone if it does not violate the Constitution). When a judge decides this conflict by relying on anything but the Constitution and statutes (whose meanings are, of course, informed by moral and historical context), she places that consideration above one or the other, contrary to her constitutional power.
These principles are simple and easy to understand, only a step removed from Schoolhouse Rock’s three-ring circus. But, as I’ve written elsewhere, it’s hard to overstate the scandal that takes place when a judge violates these principles, relying on extralegal considerations to “interpret” law. It disserves litigants, actual and potential, who rely on written law to situate their affairs. It tells other judges—including those whose relationship with moral principles and the natural law is more tenuous than Professor Arkes’s—that they, too, may supplement imperfect statutes with their own moral reasoning, which they will not recognize as inferior to Professor Arkes’s. Most importantly, it strips us, the American people, of our right to constitutional republicanism. Justice Scalia’s dissent in Obergefell is right: This isn’t merely about results. It’s not even about the words on the page. It’s about sovereignty, about who governs you.
That’s why originalism and textualism are so important: they preserve our constitutional order and our right to govern ourselves. And really, they are no more complicated than the order they protect. Textualism is the simple proposition that statutes mean what their words were understood to mean at the time they were enacted. Originalism is what we call the same proposition applied to the Constitution. Both principles reflect the facts that (1) our laws are written words and (2) words have objective, ascertainable meaning. Viewed like this, theories of textualism are so obvious they hardly deserve a name.
As far as I know, Professor Arkes has yet to cope with this humble account of originalism and textualism. As Ed Whelan argues in his own response, the version of originalism Professor Arkes attacks instead is unrecognizable to most conservative judges. He aims his fire first at Bostock, claiming that Justice Gorsuch’s opinion for the Court would be corrected “most decisively” by the moral truth that sex is unchangeable. But in the same breath, Professor Arkes seems to acknowledge that no single educated reader in 1964 would’ve thought “discrimination on the basis of sex” meant “discrimination on the basis of sexual orientation” or “discrimination on the basis of sex identity.” Textualism asks precisely that question, and, applied properly, would solve Bostock to Professor Arkes’s satisfaction. Later, Professor Arkes claims that Loving v. Virginia, which struck down interracial-marriage bans, has no textual basis in the Constitution, which says nothing of marriage. This simply ignores the Equal Protection Clause, which no textualist would do.
I’m deeply disturbed by this theory of “better originalism,” in part because it echoes some of the ugliest features of other recent postliberal arguments. For one, it tends to judge originalism (and itself) only for the results it achieves, ignoring the way it achieves them. But then, despite this consequentialism, the theory cannot account for the results it will yield in the hands of its enemies. Moreover, its proponents hardly ever tell us what affirmative behavior they’d like to see; they simply reject the status quo, optimizing rhetorical leeway. Most concerning, it reflects and appeals to a disturbing cynicism (which I am sincerely, absolutely certain Professor Arkes does not himself share): that neutral principles are fairytales, that we should emulate progressives’ success in setting fire to antiquated notions of pluralism and liberalism. Applied here, that “their” judges have had their fun, and now it’s time for “our” judges to have theirs.
The bitter irony is that the neutral principles Professor Arkes decries would have saved us from the cases he decried. Those principles, intelligently and faithfully applied, would have yielded the results Professor Arkes wants, perhaps indicating that our written law is enough to protect us from progressivism. Herein lies yet another feature of contemporary postliberalism (again, one I’m certain Professor Arkes does not himself suffer): extraordinary ingratitude, a desire to kill the goose that laid the golden egg. Much like centuries of liberal democracy and American capitalism have produced extraordinary prosperity and personal liberty, forty years of textualism and originalism have produced a federal judiciary that reliably rejects progressive excesses and focuses instead on fidelity to the law and the rights of those it exists to serve. Where our liberal democratic principles have failed, it has been because those in power reject, undervalue, and undermine these principles, ignorant of the miraculous conditions in which we find ourselves. But the answer to those failures is more capitalism, more republicanism, more pluralism, and more liberalism.
So too here.
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Eric Hageman is an attorney in Washington, D.C.