Remarks from NRI’s Regional Seminars.
The following remarks, lightly adapted, were delivered by the author in Chicago on April 11, as part of National Review Institute’s Foundations of Freedom Seminars series on the Importance of America’s Constitutional Pillars.
I want to talk to you about a controversy that came and went before many of you may have even heard of it. This happened a few weeks ago. An organization called the Dwight D. Opperman Foundation received a great deal of unwanted publicity. Five years earlier, it had inaugurated a leadership award with the support of and named after Justice Ruth Bader Ginsburg.
But this year, the foundation chose several recipients for the Ginsburg Leadership Award who did not meet the approval of the late justice’s family. The slate of awardees included — and from that verb tense you will note the outcome of this dispute — Rupert Murdoch, Elon Musk, and Michael Milken.
In a letter urging the foundation to reconsider, a former Ginsburg clerk wrote that several awardees “exhibit none of the values that animated the justice’s career and none of the things that she herself emphasized.” When celebrating the inauguration of the RBG award, the family issued its own letter saying that the foundation “has strayed far from the original mission of the award and from what Justice Ginsburg stood for.”
Original mission, you say? The family and the clerk raised excellent points, points that rest on premises that are so compelling that nobody felt a need to state them explicitly. It turns out that when people work together to start a project or enterprise, it’s possible to determine the original understanding of that project. That understanding is not hopelessly subjective or indeterminate. It turns out, further, that we have evidence of what that understanding was.
Even in this case, when we’re not talking about the interpretation of a written document, we have evidence in the form of the comments of the people who authorized that project. It turns out that it is not beyond human wit to apply that understanding to novel situations that arise even after original authorizers have died. Applying it is not immoral or impractical on the ground that it requires the living to be governed by the “dead hand of the past.” And not only do we have access to the original understanding, if we are charged with continuing the project, we have a moral obligation to follow the original understanding.
Originalism, in short, is breaking out all over. As the justices of the Supreme Court across the ideological spectrum have repeatedly demonstrated, it is the method of interpretation to which we naturally default when we are prepared to accept the results. And so, when it comes to this award, there will be no “living Ginsburgism.” In actuality, though, there’s no Ginsburgism of any kind.
Indulge me for a moment as I quote a recent column I wrote In The Washington Post:
Progressives have not just failed to popularize an alternative to judicial conservatism, they have barely even come up with one. No justice in history had a following as large as Ruth Bader Ginsburg, but she left behind no school of thought in the way Justice Antonin Scalia did. Former Justice Stephen Breyer continues to write in favor of a theory of judicial pragmatism in contrast to Scalia’s originalism. None of the Democratic appointees still on the Court has adopted it when they dissent from conservative decisions. The liberal justices are more likely to accuse the majority of inconsistently applying originalism than they are to dispute it. Or they will cite precedents from the earlier liberal era on the Supreme Court, a tactic that will grow less useful the longer today’s conservative supermajority is in place.
That column drew a response in the New Republic. The liberal author argued that his fellow liberals should adopt a progressive version of originalism, one that finds grounds in the original understanding of the Constitution for progressive legal victories. To this proposal, several luminaries of the legal left responded independently with the exact same words on X.com: “Hard pass.”
The first thing to note about this response is it illustrates my point. There is in our day no consolidated alternative to originalism. The progressives engaged in this debate all agree on what they want the Constitution to say, they just can’t agree on how to make it say what they want. And this has been the case for a very long time. Consider the decades of academic wrangling in the law reviews about how to derive a right to abortion from the Constitution. They couldn’t agree on just where the Constitution protected this right, but they were sure it was in there somewhere.
But there’s a more important point that emerges when we ask why originalism has so much more appeal for conservatives than for progressives, and why, for that matter, the wholesale rejection of the Constitution has been a much more prominent feature of left-wing than of right-wing thought.
I think the answer is that the Constitution is, in many respects, a conservative document. That doesn’t mean that it requires governments to implement conservative policies on all subjects, or that it forbids liberal ones. Still less does it mean that Republicans always show the Constitution the proper respect. Less than two years ago, the prospective Republican nominee for president, for example, called for undoing the results of the previous election, even if it meant the “termination” (his phrase) of rules in the Constitution.
When I say that ours is a conservative Constitution, I mean that it pushes in directions that conservatives tend to find more congenial than progressives, and it reflects views about government that are closer to ours as well. Many constitutions around the world have long lists of positive rights that governments are obligated to provide. Ours doesn’t. Our constitution differs from many others in imposing serious constraints on the authority of the national government, especially including the multiplicity of veto points over any proposed federal action.
At the same time, the Constitution gives the state significant weight to regulate morals. It buttresses the power of rural over urban voters. It is very concerned with the protection of property rights and not at all with the protection of sexual freedom. These features of the Constitution, along with the conservative tendency to revere tradition, explain our greater enthusiasm for the Founders’ handiwork. They also explain something that lies behind a common progressive accusation against judicial conservatism.
The claim is that conservative rhetoric about the courts and the Constitution is insincere. We say that we follow the original understanding of the Constitution wherever it leads; they say that suspiciously often, we find that it leads just where we want it to. A prominent Democratic lawyer complained in 2022 that in a span of days, the conservative justices had found that the Constitution gave states expansive power to regulate abortion, but only limited power to regulate guns. That supposed disjunction shouldn’t embarrass conservatives. It’s simply a consequence of the Constitution we have — in these cases, of the fact that it explicitly protects the right to keep and bear arms and contains no similar provision for abortion.
Any liberal objections on this score should be lodged not with Justice Alito and his colleagues, but with James Madison and his. The chief actual flaw of the ongoing recovery of the original understanding is that it is incomplete. That’s not just a matter of there being decades of liberal precedents that deserve pruning, if not hacking away at if we are to get a clearer view of the constitutional order. More importantly, we continue to accept an understanding of the constitutional division of responsibility that places too much of the burden of this work of recovery on too few shoulders.
It is only during the era of expansive and unoriginalist judicial policy-making that we have come to regard the federal courts and especially the Supreme Court as the institutions chiefly responsible for seeing to it that our government obeys the Constitution. Madison didn’t take this view when he was defending and arguing for the Bill of Rights that he had authored. He first mentioned that writing down those rights and placing them in the Constitution would “have a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community.”
Only then did he go on to discuss “independent tribunals of justice” as an “impenetrable bulwark” against invasions of those rights. And even in that phrase, he may well have been referring to juries as much as to judges. Chief Justice Marshall didn’t take this view either. In Marbury v. Madison, he made the more limited, albeit important, point that judges must follow the Constitution rather than a statute when forced to choose between them. The Supreme Court would go on to set aside precisely one more federal statute in the decades between that decision and the Civil War.
Reacting to that case, Dred Scott, Abraham Lincoln, in his first Inaugural Address, acknowledged the existence of the modern view, but pushed back against it, warning that “the people will have ceased to be their own rulers” if they simply hand the Constitution over to the high Court. The main threat we face now is not an overactive Court — although we should always stay mindful of that danger. It is rather a kind of civic flabbiness that comes when we expect the courts alone to keep us faithful to the Constitution.
That expectation asks too much of the court and too little of the other branches of the government, and of the people themselves, which have their own indispensable parts to play in safeguarding the constitutional order. Consider the current conservative and libertarian hope that the Supreme Court will breathe new life into the nondelegation doctrine, and hold that Congress, being vested with legislative power, may not parcel out that power to agencies that then act as executive, legislative, and judiciary all at once.
The story conservatives tell ourselves is that the Supreme Court abandoned this doctrine during the New Deal — and that’s largely true, but it’s also incomplete. The fuller truth is that the Court has struck down delegations only twice in our history. Both those times were during the New Deal. Before then, it was the political branches, and ultimately the voters, who mostly enforced the principle that legislation is for legislators.
Before asking the courts to do the entire job now, we should ask whether they’re up to it; and we should ask whether the rest of us are willing to do our part. In recent years, we have seen presidents sign legislation notwithstanding serious and well-founded reservations about its constitutionality. We have seen congressmen ask presidents to exercise powers that the congressmen haven’t given them, and we’ve seen voters who don’t seem to be concerned about any of this.
The root cause of these derelictions is, as always, original sin, which Reinhold Niebuhr described as the only empirically verifiable proposition of the Christian faith. But one of the proximate causes of our problems is surely the growing conviction in our time that constitutional matters are for the courts to consider, and the related complacent assumption that the Constitution is a machine that can go by itself.
We have lost the Founders’ sense that republican government presupposes virtues such as self-restraint, honesty, and courage: the virtues that our previous speaker, Mike Pence, showed in a time of testing and that other officials continue to show in less dramatic fashion every day. There is also another problem: When political leaders and activists raise constitutional objections to the way we are governed today, we have an unfortunate tendency to make these sound like abstract points of principle. We fail, that is, to draw a line connecting departures from the Constitution to the practical consequences of misgovernment.
But those doleful practical consequences are all around us. Agencies that combine powers that should be divided among branches of government can act more imperially, less accountably, and sometimes just perversely. When a president takes on legislative jobs, he can impose policies that don’t command the wider consensus that congressional enactment would require, and then the next president can reverse the policy by the stroke of a pen, negating the steadiness of administration that was one of Alexander Hamilton’s arguments for a strong executive in the first place.
It is not an accident that the decay of our constitutional order has coincided with the tendency of government to grow simultaneously bloated, distrusted, and ineffective. It is another way of saying that the Constitution is not just the charter of government that we’ve inherited and to which we owe obedience for that reason alone. It’s a document that reflects considerable wisdom about how we, flawed nature and all, can govern ourselves satisfactorily.
There’s much more that could be said about rebuilding and strengthening the constitutional order, but luckily for all of us, not all of it needs to be said by me at this moment. Let us say for now that it is a very good thing that the federal courts have enlisted in the work of repair and not of demolition, and that it is also not something that we should leave to the courts alone. For decades, progressives have told us in so many words that we must keep the Constitution in tune with the times, and there is something to that. The Constitution often has to be applied to new circumstances, sometimes has to be amended. But there’s something more important still, something that Walter Berns told us decades ago, and that is that we need to keep the times in tune with the Constitution. In that endeavor, I thank you for your support.