Preview: Varieties of Constitutional Originalism

Anyone who would like to get a head start on a certain book that is being published next month (and which you can pre-order now, right here!—hint, hint) can find an excerpt in the new issue of National Affairs under the title “Two Kinds of Originalism.”  This is adapted from Chapter 7 of the book, which is sure to sell out (so order early).

The complete book chapter is longer than this excerpt, and has a different beginning. Here’s the opening of the National Affairs version, but you’re invited to read the whole thing, since it will surely make you want to order the book.

Until Donald Trump came along with the novelty of naming specific jurists he might appoint to the Supreme Court, it was a quadrennial ritual for Republican presidential candidates to pledge that if elected they would appoint Supreme Court justices “like Scalia and Thomas.” George W. Bush (in 2000) and Rudy Giuliani (in 2008), to name just two, both invoked the late Antonin Scalia and Clarence Thomas as their beau ideal of jurisprudence. There’s just one difficulty with this pairing, which a knowledgeable reporter (that rarest of beasts) could have pointed out with a simple question: Which one? They’re not the same. While voting together on most of the controversial cases that reach the Supreme Court, Scalia’s and Thomas’s concurring opinions often travel very different paths in their constitutional reasoning.

Scalia and Thomas represent two different varieties of constitutional originalism that inform a vigorous debate over jurisprudence among conservatives. Thomas thinks the Declaration of Independence and the natural-law teaching it expresses are an authoritative guide for judges, a view that is described as “judicial activism” of the right. Scalia, while agreeing with Thomas about the content of the natural-law tradition, thinks proper judicial restraint comes from confining judging closely to the written text of the Constitution, the known views of the founders, and the operating language of statutes. Anything beyond the text invites the kind of judicial activism that favors liberalism. The argument among conservatives over this point is often more heated than the argument with liberalism’s “living Constitution.”

Both views connect to a wider argument about the principles of constitutionalism and the philosophy of the American founding. This debate represents the maturing of conservative constitutionalism from the Nixon-era emphasis on “strict construction” or the “original intent” arguments of the Reagan Justice Department. Lots of legal thinkers, along with the Federalist Society, deserve credit for this maturation, but the philosophical core of the disputes can best be seen in part of the epic feud between Harry Jaffa and Walter Berns — political philosophers rather than lawyers.

If you’re still wondering, the book in question is: