The American Spectator

Thanks to two developments—the nomination of Sonia Sotomayor and the decision of the Supreme Court to hear the gun-rights case McDonald v. Chicago—the question of judicial philosophy has recently, once again, been in the news. The first of these developments united conservatives, whereas the second divided them.

Sotomayor, conservatives agreed, was a progressive jurist—a judge who shows insufficient deference to the text and meaning of the Constitution, preferring to interpret laws according to her own values. Case closed. The only remaining question is how much damage she and future Obama appointees can do.

McDonald, meanwhile, isn’t at all cut-and-dried for the right. The case builds on last year’s D.C. v. Heller, in which the Court struck down a gun ban in the nation’s capital, saying that the Second Amendment protects an individual right to keep and bear arms. This was itself controversial in conservative circles; some said the Supreme Court had overstepped its bounds, and should have left the issue to the elected branches of government. McDonald asks the question of whether the Second Amendment—which initially applied only to the federal government, including the government of Washington, D.C.—should also apply to state and local governments.

Both of these developments raise issues that go to the heart of the judiciary’s future. Yes, for right- wingers, Sotomayor is a setback, but she comes in the midst of a very significant resurgence of conservative jurisprudence—a resurgence that came about through both politics (Republicans appointed six of the Court’s nine current justices) and academic research. In some ways, particularly intellectually, the conservative approach to the law is stronger than ever.

McDonald, meanwhile, exposes fractures not only within conservatism, but within liberalism as well. Factions on both sides of the aisle disagree not only on whether but also on how the Court should apply the Second Amendment to the states.

II.

FIRST, A WORD ON TERMINOLOGY. A “conservative” judge is not one who always votes to uphold conservative laws and to strike down liberal ones. Rather, when observers call a judge “conservative,” they typically mean that he is to some degree an originalist. That is, he believes that laws have reasonably definite meanings, set by the words within them, and that these meanings do not change over time. Originalists do not believe that the Constitution is “living,” and most originalists agree that judges should avoid looking beyond the text of enacted laws, except to learn the context and meaning of the laws themselves.

Originalism has come a long way in a very short time. During a speech at an American Spectator dinner in late 2008, Justice Samuel Alito noted that there has been an explosion of judges’ citing dictionary definitions from the eras when laws passed. This reflects a desire to understand what laws meant when the people, through their representatives, consented to them. Alito also noted that in Heller, both the majority opinion and the main dissent used originalist arguments. That is, the justices disagreed only on what the words of the Second Amendment meant to the generation of Americans that enacted it, and used a good deal of historical evidence in making their points.

To understand originalism’s rise, it helps to understand originalism’s history. In the 18th century and most of the 19th, originalism was the only game in town. The Supreme Court almost never struck down the actions of the other branches of government. When the justices made decisions, the reasoning was typically grounded in the text of the Constitution, sometimes with extra evidence of the Founders’ intentions from contemporary documents like the Federalist Papers.

In the decades leading up to the New Deal, the Court increasingly struck down federal and state laws. Often its reasoning involved the dubious doctrine of “economic due process”—the idea that the Fourteenth Amendment’s guarantee of “due process” guaranteed a right to freedom of contract, even though no such right is stated explicitly. In Lochner v. New York (1905), the most widely cited of these cases, the Court struck down a state law limiting the number of hours bakery employees could work.

These decisions sometimes impeded President Franklin Delano Roosevelt’s ambitions. But by this time academia had revolted against decisions like Lochner, and the Court slowly caved (thanks in no small part to FDR’s appointment of eight justices). On questions of economic policy, it let states regulate as they pleased. In other areas, the Court expanded its role in overseeing legislatures. It used the “due process” clause—ironically, in much the same way Lochner had—to “incorporate” the Bill of Rights to prevent the states, not just the federal government, from passing laws that curtail constitutional rights. This process had begun with 1925’s Gitlow v. New York, which incorporated freedom of speech, but picked up steam in the 1940s. For example, 1947’s Everson v. Board of Education prevented state-run schools from establishing religion.

In addition to incorporating enumerated rights, justices protected, usually on due-process grounds, a slew of rights that weren’t even mentioned in the Constitution. Starting in the 1960s, the Court found rights for birth control and abortion, and for criminals to be “Mirandized” before answering questions. The Court never became so bold as to admit it was making things up. Every decision was presented as flowing naturally from some part of the Constitution, or at least from the Constitution’s principles. But it’s undeniable that the document’s original meaning became less and less of a concern.

The most notorious example, of course, was 1973’s Roe v. Wade. The basic reasoning was that a state could not ban abortion without running afoul of “due process”—even if the state legislators went through the proper (or “due”) lawmaking process. Such a law violated the “fundamental” “right to privacy,” and thus its passage failed to provide “substantive” due process. Decisions leading up to Roe (in particular Griswold v. Connecticut, the birth-control decision) had recognized the privacy right, which supposedly had “roots” in the First Amendment; could be found in the Fourth, Fifth, and Ninth Amendments; lurked in the “penumbras” of the entire Bill of Rights; and even emanated from the “concept of liberty” underpinning part of the Fourteenth Amendment.

III.

IT WAS AGAINST THIS TIDE that originalism swam. The academy produced some critics of judicial activism, and even some mild successes, almost as soon as the most controversial decisions started materializing. As Judge Douglas H. Ginsburg once pointed out at an American Enterprise Institute lecture, in 1966 then-professor Robert Bork offered an originalist analysis of the antitrust Sherman Act—the law’s drafters, Bork said, intended the law to protect consumers, not to further various social aims the way judges had interpreted it. The Supreme Court agreed. Professor Raoul Berger, a liberal, released Government by Judiciary in 1977, arguing that the Constitution requires judges to stick to the Framers’ original intentions, and that the Warren Court’s Fourteenth Amendment jurisprudence had strayed from those intentions.