February 11, 2017 by John Bruce Leonard
What Conservatives Owe Originalism
WHILST REVIEWING the current debate over the fitness of Neil Gorsuch to fill the Supreme Court seat vacated by the late Antonin Scalia, I am reminded of what has always struck me as an intriguing paradox. Scalia made a name for himself by defending the originalist interpretation of the Constitution—that is, the interpretation which strives, insofar as it be humanly and judiciously possible, to hold rigorously to the original meaning of the Constitution. Taken at face value, this appears to be, not only a moderate position, but the most moderate position available to any American. Assuming that the Constitution is the base line of all American politics, Scalia’s judicial philosophy should represent the ideally centrist position. And yet, Antonin Scalia is widely regarded as one of the most “right-wing” justices ever to sit the bench. How is this possible?
There are, it seems to me, only two admissible explanations: either Justice Scalia was a rank opportunist who justified an esoteric right-wing agenda through the use of a sophisticated casuistry; or else there is a notable discrepancy between the Constitution as it was originally writ, and the political climate of today. Either Justice Scalia artificed a complicated hermeneutics capable of fabricating the partisan answers he secretly craved, and then passed the better part of his life endorsing this spurious system through many books and countless speeches and lectures; or else there has been a striking transposition in our American politics toward the progressive left.
The first possibility is almost taken for granted by the left, and is sometimes persuasively argued for. But note well: it is always defended on the circumstantial evidence of the fact itself: because Antonin Scalia returned answers to judicial questions which were almost exclusively “conservative,” therefore his interpretive method was biased. This critique presupposes, however, that progressive legislation is as constitutional as conservative legislation. The progressive left quite understandably discounts the possibility that Scalia was an objective interpreter of the Constitution: for that would mean that the progressive agenda is itself of inherently dubious constitutionality.
For many reasons, some obvious and others less so, the conservatives cannot afford to discount this possibility.
If we are to lay aside the charge that Scalia was a charlatan—and indeed, I have always found it difficult to believe that any of the Supreme Court Justices work in bad faith—then we must explain Scalia’s supposed prejudices with reference to a historical shift in the center of American politics. This is not prima facie absurd. Indeed, it comes to the attention now and then of the more historically minded conservatives of our day that their country has, despite the dearest attempts of conservatives to hold it fast, been long drifting, and drifting consistently and most suspiciously portward. This same proclivity is recognized by others who have simply been alive long enough to note it; they find that, while their political positions have not altered in the least in the past forty years, they were once taken to be moderates, where today they are considered regressives or even extremists. This has led some critics from the new American far right to wonder if American conservatism was not a ship built to sink.
Yet there is an easy explanation for the fact in question, and one that does not rely on some inherent flaw in the conservative mindset, and it is this: while the progressive has only to contend with the conservative, the conservative has to contend also with time itself. Permit me to explain.
Conservatism by its very definition would hold, as much as possible, to the status quo; its standard political attitude is one of resisting change, which it regards as being, if not outright pernicious, then commonly deleterious to the principles of political and social welfare upon which our nation was founded. While progressivism points zealously to the future, to tomorrow, to the improvements and benefits which it would achieve by changing the present state of society, conservatism responds by gazing steadfastly toward the past, and in particular to the founding state of our country. This founding state forms the conservative polestar and the guiding pattern of all conservative political choices, and it is only with great difficulty and in times of great duress that the conservative will part from it.
The “founding state” of any commonwealth is always historical, and generally is based on the conditions of society after a certain historical moment, which serves as a kind of calendrical marker, or “year zero.” Such a date in any nation of long and heterogeneous history is determined with a degree of arbitrariness. The United States is relatively unique amongst the nations of the world for being able to determine this “year zero” with uncommon, and uncommonly uncontroversial, precision: our “year zero” is nothing other than the year our Constitution was ratified. Conservatism makes constant reference, then, to that historical moment; and because its “year zero” is accepted as such by all parties, conservatism in the United States has an inherent advantage over the conservatism of just about any other country in the world, which helps explain the fact that in the United States conservatism has until recently been the natural position of the American right. Conservatives recognize, of course, that there have been fundamental changes in the political fabric of the nation since “year zero,” but the most important changes, they hold, are represented exclusively in the Amendments to the Constitution; which is to say, they are always and ever bound to “year zero.”
Now, here is the trouble, and the true explanation for what is sometimes interpreted as the “failure” of conservatism: the conservatives constantly seek to maintain the status quo, but because human societies are ever in flux, they constantly find that status quo shifting beneath their feet. What is regarded as normal today, was certainly not normal one-hundred years ago. But none of today’s conservative was alive and aware one-hundred years ago, and so it is difficult for any conservative of today to perceive the degree to which the status quo which he would preserve has really changed. Moreover, because the only viable alternative to conservatism in the United States has hitherto been progressivism, the status quo shifts always to the left. What a conservative of today wishes to conserve, is thus already considerably more progressive than what a conservative of fifty years ago wished to preserve.
This forms a challenge to conservatism. Conservatives have need, in a way that liberals simply do not, of thinkers who are able to gaze back through the years, to dip as deep into the well of the American past as they may: they require, that is, thinkers who are able to remind, through deep historical contemplations and a mastery of both the original conditions of our country, and all subsequent foundational legal developments, just what conservatism originally meant, and what the true status of conservatism is in our day, considering all the non-negotiable changes in law which have been effected, and all the legal precedents which have been lain down, in the meantime. This requires a formidable knowledge of the legal traditions of our country, and such knowledge is uncommon at best.
The acquisition of such knowledge cannot be, or cannot be primarily, the work of conservative intellectuals; for those intellectuals must busy themselves with the present state of affairs; they must dedicate the greater part of their time to gleaning familiarity with current events not only in America but around the globe, and keeping abreast of the newest political theories and works of both the right and the left. The progressives have a far easier time of it: for the progressive intellectual, this most exacting preparation in present-day affairs is identical with progressive intellectualism as such. Historical studies for the progressive intellectual are but supplementary to his task. But the conservative intellectual needs something else besides: namely, he requires grounding in the original meaning and form of Conservatism.
To demand of any single individual competency in both the current state of affairs and the historical development of American jurisprudence, is to demand an erudition of truly heroic breadth; it is to demand something that is, if not impossible, then surely exceedingly rare, to the point that it would be foolhardy to expect its appearance in any given generation. The conservative is thus in need not only of one kind of intellectual, as is the progressive, but of two: one kind to dedicate himself to the present, and the other to dedicate himself to the past.
There is only a single office in all of our society which is capable of nourishing and promoting the latter kind of figure, and that is the office of the judiciary. The second kind of intellectual so badly needed by conservatism can be found only amongst those justices who devote their lives to a comprehensive understanding of the legal underpinnings of our country, and who possess the exceptional traits of memory, impartiality, and intelligence necessary to acquire it—those justices, that is to say, who work at the top echelons of the courts. And even more specifically: these justices must possess that clear-minded, clear-eyed commitment to the original meaning of our founding documents, which permits them to look upon American legal history without sophistry, and without being led astray by the prejudicing and obscuring lens of any political agenda.
A man like Antonin Scalia is not merely an incidental boon to the Conservative project, as, say, Justice Ginsberg is to the progressive; on the contrary, he is a compass rose for the entire Conservative movement, to remind conservatives everywhere precisely in what direction their work should be tending, and to grant them the capability of pressing in that direction assiduously and shamelessly, though and precisely because they be dubbed retrograde and regressive for it. I claim that Conservatism owes a debt of gratitude to justices like Antonin Scalia or Neil Gorsuch, a debt which can only be repaid by the attentive study of the work of these men, and by deference to their opinions in all cases in which there is not excellent reason to demur.
Indeed, I will go farther: it is imperative that conservatives ponder carefully the positions of these justices, particularly when these positions contradict the prevailing conservative attitude: for if American conservatism is not to surrender the field altogether to what I call the emerging American progressive right, then it needs must differentiate itself from this new right with all the clarity at its disposal. Conservatism can only do this by grounding itself firmly upon the deepest historical bedrock available to it—the bedrock of the Constitution, which the new American right at essence mistrusts and often even scorns.