Merriam’s critique doesn’t go deep enough.
With his lead symposium essay, Jesse Merriam revisits the constructive criticism he offered of “A Better Originalism,” the manifesto I, Hadley Arkes, Josh Hammer, and Matthew Peterson co-authored in these pages at the advent of the Biden presidency. As Merriam wrote in 2021, “The failure of legal conservatism is principally a product of how it is structured, not the product of an inadequate legal theory.” By structured, he meant not only the institutions that dominate the conservative legal movement, but also the aims at which those institutions pull oars together to achieve.
Legal conservatism needs substantive goals to which the movement can orient its activities, a point on which Merriam is correct. Indeed, a hyperfocus on the methodologies of the prevailing form of originalism, the original public meaning variety, masks the ultimate ends of a legal conservatism worth pursuing in the first place.
But in both essays, where Merriam rightly accuses legal conservatives of too narrowly focusing on doctrinal wins and specific precedents to be overturned, he too narrowly focuses on how to approach remedying the current moment’s constitutional morality. We ought to go deeper and ask what those principles are that allow us to critique any moment’s erroneous constitutional morality. Thankfully, the first principles of moral and legal judgment, as understood by the American Founders and Lincoln, can give us an accurate diagnosis and a cure for what ails both legal conservatism and our current moment’s constitutional morality.
The civil rights regime, and its attendant constitutional morality, is Merriam’s great foe. He breaks that regime down into two basic propositions: “(1) diversity is our greatest constitutional good, and (2) discrimination is our greatest constitutional evil.” I share his objections to the reigning precedents and orthodoxies that uphold the attenuated administrative and judicial requirements of the Civil Rights Act of 1964 fashioned by the Warren and Burger courts.
Yet, Merriam is mistaken about the principal reasons why illegitimate race-based discrimination and an overemphasis on race-based diversity deserve opprobrium. He writes that they are “in sharp tension with the foundational principles underlying the American Founding, such as limitations on federal authority and protections for various associational, expressive, and conscience rights.” Though these are, of course, central American principles, they are secondary reasons for why the racial issues Merriam points to are problematic.
In his concurrence in the Supreme Court’s affirmative action ruling in Students for Fair Admissions v. Harvard, Justice Clarence Thomas caught the core wrong with our present moment’s constitutional morality:
Individuals are the sum of their unique experiences, challenges, and accomplishments. What matters is not the barriers they face, but how they choose to confront them. And their race is not to blame for everything—good or bad—that happens in their lives. A contrary, myopic world view based on individuals’ skin color to the total exclusion of their personal choices is nothing short of racial determinism.
What Justice Thomas offered in those sentences was nothing short of one of the most elegant articulations of a jurisprudence anchored in those axioms of reason that must underlie any legitimate government that can claim to uphold the rule of law. As Hadley Arkes has written, “It is the fallacy of assuming that we can draw moral inferences about persons, their goodness or badness, their moral deserts, as though race determined or controlled their conduct and character.” The issue for Merriam, and the legal conservatives he criticizes, is with recognizing the legitimacy of this argument.
First, many legal conservatives would likely think that had Justice Thomas used such reasoning in a majority opinion, he would have committed a grave sin against originalist orthodoxy for not grounding his view either in the positive law or in the historical record. These legal conservatives, as I and others wrote in 2021, reduce originalism to an “exalt[ing] of procedure over substance. They treat an adherence to their interpretive methodology as intrinsic victories.”
It is true that neither the Constitution nor the positive law of the Civil Rights Act of 1964 speaks of the fallacy of determinism regarding characteristics such as race that are “wholly wanting in moral significance.” But that is no knockout blow against my argument. As Alexander Hamilton recognized in Federalist 78, fundamental precepts unmentioned in the law can source their validity “from the nature and reason of the thing.” Hamilton was referring to a rule of interpretive construction, but he could have just as easily referred to those “precepts of common sense that ordinary men readily grasp.” Appealing to these principles is how to restore a moral grounding to legal conservatism that also aligns it with the “original originalists,” the American Founders.
Now shifting to Merriam, if he recognizes this same problem with legal conservatism writ large, which I think he does, he unfortunately does not incorporate this tack into how he would align the north stars of his preferred legal conservatism.
To take one example, what would Merriam identify as the wrong with Griggs v. Duke Power, the Supreme Court opinion enshrining the doctrine of disparate impact in our civil rights laws? He has in the past approvingly cited the late scholar Herman Belz, who wrote, “Griggs shifted civil rights policy to a group-rights, equality-of-result rationale that made the social consequences of employment practices, rather than their purposes, intent, or motivation, the decisive consideration in determining their lawfulness.”
The incoherence of claiming a deterministic “group right” on the basis of race, an individual characteristic wholly wanting in moral significance, should be one of those north stars. But Merriam writes in his proposal that he would approach his search for north stars with an understanding that the purpose of law is “to cultivate a shared moral and civilizational order grounded in a common inheritance.” Aquinas observed, somewhat differently, that “The purpose of human law is to lead men to virtue, not suddenly, but gradually.” I fear that Merriam’s approach deemphasizes the central role of those first principles, principles that must be at the heart of any shared moral and civilizational order rooted in virtue. Instead, he seems to favor a consensus-based approach that sees comity as the highest good. On the contrary, Aquinas would begin with a proposition true of necessity and then work toward the instantiation of that principle in law, even in modest ways, to redound toward the common good of the polity.
To return to the Griggs example, would not Merriam’s primary objection to the disparate impact regime be that it has disrupted interpersonal relations between local employers and employees whom they wish to hire through an overly broad administrative edict? If so, by failing to place front and center the wrong of racial determinism against any individual and thereby recognizing the replacement of “individual rights” with “group rights,” Merriam has fallen victim to the same ailment that plagues most legal conservatives when analyzing any civilization-shaping issue. He has addressed what appears wrong without identifying the deeper underlying substantive wrong, the wrong that actually shapes “the legal and political culture that can foster a virtuous political and social order,” as Merriam puts it.
Like Merriam, I want a legal conservatism with worthwhile north stars that guide practitioners and institutions more than I want a legal conservatism that amounts to doubling down on a form of originalism that “prides itself on its careful avoidance of addressing the moral substance of even the gravest cases.” Litigation strategies should not aim solely to slay dragons of bad precedent and mount their stuffed heads on a wall to admire. Expanding the Overton Window for what’s possible politically through litigation strategies ought to occur hand in glove with restoring a healthy culture. On these points and more in his essay, Merriam is correct.
But at this moment, when legal conservatives have the opportunity to consider the present and future, it has never been more critical to identify, articulate, and incorporate into their work axiomatic truths that ought to animate the core of any good legal movement. In this way, whenever confronting any wayward “constitutional morality,” legal conservatives will have the confidence to be anchored in such timeless principles.
