Creating a constitutional morality is beyond the judicial power.
Legal conservatives find themselves in an unusual position: originalism has reached unprecedented acceptance within the judiciary and the bar. A majority of Supreme Court justices—including at least one appointed by a Democratic president—identify as originalists, or at least strive toward originalism. Guided by the original understanding of those who ratified the Constitution and the Reconstruction Amendments, the High Court has overruled Roe v. Wade, ended the use of race in higher education, and recognized the individual right to own firearms.
But some find these successes disorienting. Originalism’s victories have triggered an important debate among conservatives. Some wonder if originalism is up to the task of fashioning an approach to constitutional interpretation rooted in a conservative morality that can supply a positive agenda for law and policy. For these conservative critics, the moral neutrality of originalism, which arose in opposition to the explicit policymaking of the Warren Court, appears to be its central defect.
Professor Jesse Merriam’s essay in The American Mind is an example of this view. He writes,
The future of legal conservatism depends on whether the movement can break its own institutional habits and dare to articulate a new constitutional morality fit for the demographic and spiritual crises of our age—the crises of belonging, fertility, and meaning—and align jurisprudence with the task of civilizational renewal.
Merriam and other critics are correct to observe that originalism does not advance a “new constitutional morality.” It does not promote “good” or “bad” outcomes—it simply enforces the constitutional rights and structures established in the constitutional text as understood by those who ratified it.
For example, originalism does not ask whether a right to bear arms makes sense in terms of a natural right of self-defense, a social contract theory of government by consent, a traditional state provision of public safety, or a utilitarian calculus weighing the benefits of gun control in reducing violence. It simply asks whether those who ratified the Constitution would have understood the language of the Second Amendment to protect an individual right to possess firearms. In District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2012), Justice Antonin Scalia in the former case and Justice Samuel Alito in the latter one may have looked to natural rights theory, but they did so only to understand the historical context that gives meaning to words such as “the right of the people to keep and bear Arms.”
Calls for a “new constitutional morality” rest on a mistaken view of the courts and their role in constitutional interpretation. When originalism fails to produce the moral outcomes Merriam and other critics prefer, they treat this as a defect in the method. But originalism does not supply a moral philosophy—it is a method of interpretation. It keeps judges within the boundaries of the proper judicial role set out in the Constitution.
Presidents and Congress, no less than governors and state legislators, play the primary role in identifying public morals and implementing them through statutes, regulations, and executive orders. As Alexander Hamilton argued in Federalist 78, the “proper and peculiar province of the courts” is “the interpretation of the laws,” not pronouncing or enforcing a specific morality. Judicial review arises only because a court, confronted by “an irreconcilable variance between” an act of Congress and the Constitution, must enforce the law with “superior obligation and validity,” in other words, the Constitution. As Hamilton concluded, “[T]he constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”
To convert the judiciary into a vehicle for social and moral restoration would abandon the constitutional structure and mirror the errors of the Warren Court and its liberal activism. This view assumes that judges, not legislatures, are responsible for managing the nation’s social and moral order. But that has never been the judiciary’s role under the Constitution. Article III courts do not exist to legislate or promote a national philosophy—they exist only to enforce the Constitution.
Abandoning the Founders’ Constitution
Conservative critics of originalism reverse the basic logic of the Constitution, which limits the federal government by requiring it to justify every action through an affirmative grant of power from the people. Our Constitution’s design as a charter of limited and enumerated powers was the original safeguard of liberty. The federal government—and especially the judiciary—may act only when the people have granted it authority. It does not possess a free-floating mandate to pursue the “common good” or redesign the nation’s social order.
Legal conservatism exists precisely to enforce that structure of government. It rejects the claim that courts must manufacture new rights or supply the moral content of our politics. When courts strike down laws that exceed Congress’s powers, they are not depriving the public of moral guidance. Instead, they are enforcing the people’s decision to limit the federal government through the supermajoritarian process used to adopt the Constitution. The aim of legal conservatism is to enforce the constitutional limits that make American self-government possible. Whether originalism leads to “good” or “bad” outcomes depends on the laws the people have adopted through their political representatives in the legislature.
What some conservative critics identify as a failure of originalism is really a failure to follow originalism consistently. Consider the Slaughterhouse Cases, where the Supreme Court incorporated the Bill of Rights against the states through the 14th Amendment’s Due Process Clause. As scholars both conservative and liberal have recognized, using a text that addresses process to incorporate substantive rights makes no sense. But conservative judges who leave untouched the Warren Court’s incorporation precedents do not stand guilty of violating originalism. Instead, they should locate incorporation elsewhere.
The Privileges or Immunities Clause is the true source of individual liberties in the 14th Amendment. The framers of that amendment read out a list of rights—usually the Bill of Rights—to explain the rights secured by the clause. But the Supreme Court erred when it declared in the Slaughterhouse Cases that the Privileges or Immunities Clause had almost no meaning, which opened the door for later courts to create substantive due process and expand the meaning of equal protection to fill the gap. The unpersuasive patchwork that emerged was not the fault of originalism, but of a Court that refused to follow that method consistently in interpreting the Constitution.
Those who blame originalism for failing to deliver their preferred moral vision unfailingly also misunderstand the relationship between ideology and politics.
Liberal critics often declare that originalism is “ideological.” But the Constitution itself is ideological. It embraces federalism, separation of powers, and negative liberty. Any faithful interpretive method will honor those commitments. But obeying the ideology of the Founders, as expressed through the Constitution, is different from arguing that originalism serves to promote a contemporary morality or political theory.
A true test of an interpretive method is whether it compels judges to reach outcomes they may dislike as a matter of policy. Originalism passes that test, as Justice Scalia showed. As a Catholic, he may have believed that the death penalty was immoral. But as a judge, he acknowledged its constitutionality, because the Constitution’s text plainly contemplates capital punishment. Originalism forces discipline upon the judicial authority.
Scholars who argue in favor of using morality as the guiding star of constitutional interpretation will never face this conflict. For them, the outcomes of cases will always mirror their preferred policies. That is not law—that is politics. Indeed, if Merriam and other conservatives believe the judiciary must always interpret the Constitution to achieve their political ends, they could dispense with the judiciary as an institution and simply advance their morals directly through the elected branches of government.
Since originalism itself is not a moral philosophy, it cannot rescue the nation from an alleged civilizational crisis. Judges are not chosen for their moral philosophy. They are chosen to interpret the Constitution. If America faces a crisis of culture, belonging, or meaning, the solution lies in politics, families, schools, or religious institutions—not in the courts. Once we ask judges to supply a national moral direction, we abandon the constitutional structure that—through the separation of powers, federalism, and the Bill of Rights—preserves our liberty.
The Morality of Originalism
The consequences of abandoning original meaning are clearest in the infamous Dred Scott case. Chief Justice Roger Taney’s majority opinion seriously misconstrued the original understanding of the Constitution. He concluded that Congress could not regulate slavery in the territories because slaves were property, and were protected under the Takings Clause and Due Process Clause of the 5th Amendment. Thus their ownership and their movement could not be restricted by the federal government. The natural consequence of this reasoning, as Abraham Lincoln understood, was that either all of America would tolerate slavery or none of it would—and Dred Scott’s logic suggested that all of it would.
This interpretation contradicted the original meaning of the Constitution. But more fundamentally, it subverted the careful constitutional bargain crafted by the North and South. The two regions could no longer trust each other to obey the Constitution, because the safeguard the parties had established—the Supreme Court—surrendered its legitimacy with its erroneous decision. Dred Scott, by failing to honor and enforce the original terms of the deal embodied in the Constitution, left the North and South with no recourse but civil war. (For a more detailed discussion, see my recent article, “Rational Judicial Review: Constitutions as Power-sharing Agreements, Secession, and the Problem of Dred Scott.”)
Dred Scott shows the perils of attempting to subordinate originalism to a moral philosophy. Chief Justice Taney held the view that, contrary to the Declaration of Independence, men were not equal in their right to be governed only by their consent. He believed that the Constitution adopted this moral view and that he, as a federal judge, could advance it through interpretation.
Not only was this a perversion of originalism, but it also inflicted disastrous harm upon the nation. A deviation from the Constitution amounts to a change in the basic rules of the game. When that change adversely affects a party that helped to form the agreement, the change subverts the entire purpose of the agreement and, in turn, the country. Dred Scott raised a judicial obstacle to a political settlement of slavery and contributed to the coming of the Civil War, the most destructive conflict in our nation’s history.
Originalism is moral because it preserves the rules that allow our political system to function.
This is not to argue that the Constitution does not protect the natural rights declared in 1776 or in 1789-91. But those rights cannot exist without the creation of the nation itself—a government powerful enough to protect those rights but not so powerful as to destroy them. Whether one judges originalism through a libertarian notion of individual rights, a natural-law account of constitutional authority, or the newer calls for a “constitutional morality,” all of these theories share a basic premise: there must be an effective, viable government before any conception of the common good can be protected. That is not possible without a constitution.
Originalism can be moral even if certain provisions, as originally understood, fail to satisfy everyone’s standards of morality. What matters is not the morality of each rule, but the morality of the system that makes those rules possible. Originalism enforces that system. It preserves the constitutional structure—and the Union—that makes liberty possible. Judges who embrace legal conservatism, therefore, are not responsible for sustaining the American way of life. They are responsible for enforcing the limits the people placed in the Constitution, which leaves the creation of a positive agenda to the political branches.
If conservatives want the nation to adopt a public morality that solves Merriam’s “crises of belonging, fertility, and meaning”—even if those were indeed the crises of our age, rather than the more immediate, and perhaps existential, challenges presented by the rise of China, unrestrained public spending, or political violence—they have every opportunity to persuade their fellow citizens through federal and state elections. Merriam cannot explain why solving these crises should fall upon the judiciary, at the price of its ideological neutrality and its institutional function of enforcing the Constitution. By remaining within those limits, the courts preserve the conditions under which our republican government can flourish.
