Reimagining the Conservative Legal Movement: A Response

March 1, 2021 • Commentary

This article appeared on Pairagraph on March 1, 2021.

All of a sudden Josh’s project isn’t a fundamental reorientation of the conservative legal movement but a tweak, a “thumb on the scale for the substantive ends of the [Constitution’s] Preamble.”

Where to begin? First, let’s make sure we’re now, finally, on the same page. Here’s the entire Preamble:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

How would operationalizing that noble mission statement change constitutional interpretation in a way that better serves the “common good”? After applying his analytical toolkit, does the “common good”-oriented jurist check his originalist privilege to ensure his ruling does indeed “establish Justice” and “promote the general Welfare”?

But doesn’t that give any jurist license to impute his own definition of those aspirational terms, to impose a subjective definition of the common good? It’s a “notwithstanding clause” that overrides legal text in service of a particular policy goal. In terms that should resonate with Josh’s “Anglo‐​Hamiltonian” approach, it’s an opportunity for a judge “to exercise will instead of judgment.”

Moreover, if you want to add “substance” to “proceduralist bromides,” why stop there? I’ll see Josh his Preamble and raise him the Declaration of Independence—as does Clarence Thomas, the most conservative justice. If the complaint is that standard originalism “denudes” our jurisprudence of its grounding in natural rights or natural law, then by all means let’s look to extrinsic evidence, maybe even including the Federalist Papers. What a revolutionary idea!

Of course, Josh may not always like where that leads, precisely because the Constitution is a classical liberal document.

Oh but it should, he replies, pointing to my Obergefell brief as an example of originalism’s capture by perverted libertarians. Never mind that I later excoriated Justice Kennedy’s analysis; if states weren’t in the marriage‐​licensing business, there would be no equal protection violation. (Maybe Josh is right that I’m smitten with occupational licensing reform.)

More importantly, mine is a distinctly minority position. Calling for a National Greatness Legal Conservatism because of a view that gained zero originalist votes is bizarre. It’s yet another quixotic rant about how libertarians run Washington—while accepting the main point on which libertarian scholars have gained ground, the critique of judicial restraint.

But Josh’s argument often gets lost in obscurantist rhetoric. It’s all “exegetical prism” this and “de‐​civilizational crusades” that, plus bewildering accusations of “positivism.” I don’t know whether to deny or parry, so instead retreat to Mark Twain, who advised not to use a five‐​dollar word when a fifty‐​cent one would do.

The conservative legal movement is indeed at its zenith, with a working majority of originalists on the Supreme Court and dozens of intellectually rigorous fellow travelers on the lower courts. Why throw that out—or even adjust it—in favor of a result‐​oriented model?

About the Author
Ilya Shapiro

Ilya Shapiro is a vice president of the Cato Institute, director of the Robert A. Levy Center for Constitutional Studies, and publisher of the Cato Supreme Court Review.