Article

The future of conservatism in the courts

Written by The Frontier Post

Angus McClellan

If the leaked draft of the Dobbs v. Jackson Women’s Health Organization opinion is any indication, the future of conservatism in the courts is not common good constitutionalism. As constitutional theorists have overwhelmingly emphasized, this and similar approaches to constitutional interpretation—if one may call them that—appeal to few legal minds, particularly those of judges. There is almost zero indication that basing legal decisions on aspirational conceptions of a flourishing, moral wonderland will gain any traction now or later, and rightly so—such “methods” are almost completely detached from the actual, written law. These metaphysical visions should be relegated to the fields of political philosophy or political thought. It is time for constitutional theorists to move on and stop beating a legless horse.
The future of conservatism in the courts still lies in text-based originalism. But it is true that the current approaches to originalism often rely on an undisciplined hodgepodge of original sources. Indeed, originalism comes in forms that variously give greater or lesser weight to the convention debates, the Federalist, contemporary public perceptions, records from the state ratifying conventions, private letters, Anglo-Ame-rican common law, historical events, congressional and executive action, early case law, and so on. This is all well and good, but it is unclear which sources deserve the most weight once the text itself becomes vague or ambiguous.
If jurists and scholars crave certainty and legitimacy in the judiciary, then the ultimate goal should be to arrive at a clear method of interpretation that consistently assigns weight to different categories of original sources on a hierarchical scale. Crystallizing text-based originalism into a more coherent and universally applicable method of constitutional interpretation would help to secure the legal principles that define and balance the American forms of liberty, order, justice, and power. We are not alone in this venture. The ghosts of giants still stand among the pillars of our libraries, waiting for us to rediscover their immortal remains. Some scholars just need to get back on their shoulders and start looking around.
With that in mind, originalists should, within the framework of the Blackstonian method of statutory interpretation, rely first on the earliest case law—rather than the latest precedents—when trying to determine the meaning of constitutional text. In other words, if the words of the Constitution are unclear or ambiguous, and if the context of those words fails to produce clear meaning, then the first non-textual step in determining meaning should be a close examination of the first eras of legal interpretation of those words, particularly in the federal judiciary. This is the judicial strain of what pre-Progressive jurists called “contemporaneous construction” or “contemporaneous exposition,” expressed by the legal maxim, contemporanea expositio est fortissima in lege. It is originalism generally—an umbrella term for what some modern jurists and scholars have divided into concrete originalism and abstract originalism. One might call the judicial strain advocated here as simply, “concrete legal originalism.”
The Blackstonian Method
The Blackstonian approach to construing constitutional text is a step-by-step process designed to identify intent and reduce the possibility of judicial activism. It keeps judges in their lanes as interpreters—rather than creators—of law. First, legal minds generally agree there is no need to interpret plain text—the president must be at least 35 years old according to clear words in Article II. But under Blackstone’s broad framework, as the meaning of the text becomes more uncertain or ambiguous, interpreters must expand their spheres of consideration—haltingly, step by step, until meaning is found—by next examining the context, then the subject matter, then the effects or consequences, or ultimately the reason, purpose, or finally the spirit of the law. This author suggests that within the tertiary “subject-matter” category, the earliest judicial interpretations should be ranked first in weight as a general rule. Arranging other categories of original sources remains outside the scope of this essay.
Why should modern originalists follow this method? First, the Constitution is a fixed law—a supreme statute—and so interpreters should consider it as such and refrain from approaching it in the same fashion as they might an ordinary document, a philosophical thesis, or the first link in a common-law-style chain of inferences. Also, the earliest cases generally reflect a closer adherence to original meaning or intent. They often present the established, legal principles that are absent from the general words of the constitutional text or the thoughts of particular individuals. They often identify the original demarcations of rights and powers—before later judges replaced or subverted those boundaries.
Second, this approach avoids so many of the weaknesses of the other methods. Unlike doctrinalism, living constitutionalism, pragmatism, moral reasoning, and other modes of interpretation, the Blackstonian method of statutory interpretation—with an emphasis on contemporaneous judicial construction—is legally oriented, still considers text and context primarily, constrains the judiciary more effectively, helps to preserve lawmakers’ intent, can be more systematically applied, and ultimately it helps to provide greater certainty in the law. Certainty wards off distrust, the great enemy of stability. Few disagree that the current emphasis on stare decisis often corrupts original meaning; it actually promotes uncertainty in law, not continuity, at least when judges start inventing new delimiting principles of rights and powers—which they so often do. As the late Justice Antonin Scalia put it in A Matter of Interpretation, the emphasis on the latest precedent “frustrates the whole purpose of a written constitution,” which is to secure legal principles that define constitutional rights and powers and protect them from the machinations of freewheeling actors in government.
Finally, with perhaps a few isolated exceptions, this was the method of interpretation universally embraced from the founding until the late 19th century. The founders and framers generally expected judges to rely on Blackstone’s approach when they wrote and ratified the Constitution and its most consequential amendments. The casebook method, sociological Brandeis briefs, and similar aberrations emerged during the Progressive era, after the Reconstruction Amendments. At that point, judicial activists started jumbling the order of these steps by first considering the pragmatic consequences or even the spirit of the law when trying to determine meaning. This corruption of technique remains the foundation of judicial activism.
A Place for Contemporaneous Construction
Contemporaneous construction falls within the “subject matter” category, just after considerations of the text and context would fail to produce clear meaning. It is, essentially, originalism broadly understood. Contemporaneous construction or exposition answers the familiar question: How did the authorities of the time construe the Constitution?
One can divide it into expected applications of constitutional words and actual applications of constitutional words during and immediately following the writings and ratifications of the Constitution and its amendments. Expected applications correlate more closely with abstract originalism—popular understandings, convention debates, the Federalist, private letters, and other original sources that anticipated how the clauses would operate in practice. In terms of their use in the judiciary, they should gain weight only as they enjoy greater unanimity among sources and greater legal precision. John McGinnis recently wrote, “Expected applications do not constitute the meaning of words, but sometimes they are the best evidence of meaning, including the meaning of words meant to capture principles.” Yes, but sometimes they fail to capture legal principles entirely, and they are necessarily incomplete in their failure to present actual examples of how the Constitution originally functioned. Examples often provide those legal principles.
To illustrate, there was no clear consensus in Philadelphia on whether the constitutional prohibitions on federal and state ex post facto laws referred to retroactive legislation generally, or just retroactive criminal law. On August 29, 1787, John Dickinson consulted Blackstone’s Commentaries and claimed the definition was limited to retroactive criminal law. Still, just three days before the end of the convention, George Mason moved to strike the ex post facto clause from Article I, §9, because he worried it would indeed be applied to both criminal and civil law.
The next year on June 15, 1788, he and Patrick Henry voiced the same concern in the Virginia Ratifying Convention. Edmund Randolph replied that “taken technically,” the ex post facto provisions applied to retroactive criminal law only. Still dissatisfied, Mason retorted, “I beg leave to differ from him. Whatever it may be at the bar, or in a professional line, I conceive that, according to the common acceptation of the words, ex post facto laws and retrospective laws are synonymous terms.” Purely abstract originalism thus put public meaning and technical meaning in conflict. The issue remained unsettled until Calder v. Bull (1798), when a unanimous Court noted the definition of ex post facto “requires some explanation; for naked and without explanation, it is unintelligible and means nothing.” Justice Samuel Chase then presented the four legal principles defining those constitutional clauses, which prohibit retroactive criminal legislation only.
Actual applications such as Calder correlate more closely with concrete originalism. They are simply whatever the executives, legislatures, or judiciaries actually did under the authority of constitutional clauses during the first eras—actions taken, laws made, or decisions promulgated immediately after the ratifications of the Constitution and its amendments. If they cohere with abstract originalist sources, all the better, but concrete originalism often presents more precise explanations or demonstrations of constitutional principles. If those principles remained intact for many years and were generally agreed upon by the branches and spheres of government, they deserve even greater weight.
And so after plain text and context fail to provide clear meaning or intent, it is concrete originalism—and in particular, concrete legal originalism—that should enjoy first consideration. It offers legal assessments of real-world applications of the Constitution by those who were closest to the founders and framers. This judicial strain is the most refined, law-oriented form of concrete originalism; it relies upon the Blackstonian assessments from the most prominent legal minds of the founding and framing eras.
A View from the Giants’ Shoulders
Anglo-American legal giants recognized the value of contemporaneous construction generally, and that of judges in particular. Lord Coke emphasized the importance of concrete legal originalism when he wrote in his Institutes, “Great regard ought, in construing a statute, to be paid to the construction which the sages of the law, who lived about the time or soon after it was made, put upon it, because they were best able to judge of the intention of the makers at the time when the law was made.” John Marshall, Jo-seph Story, Fortunatus Dw-arris, Herbert Broom, The-odore Sedgwick, Thomas M. Cooley, and piles of 18-th- and 19th-century judges echoed such admonitions in their opinions and treatises.
Story followed Blackstone’s method, and in §405 and §407 of his Commentaries, he seems to have indicated that contemporaries shed light on meaning within the “subject-matter” category of interpretation. In Martin v. Hunter’s Lessee (1816) he overtly relied upon contemporaneous construction—especially that of the courts—after first construing the text or “general language of the Constitution.” Marshall recognized its value in Cohens v. Virginia (1821) writing, “Great weight has always been attached, and very rightly attached, to contemporaneous exposition.”
Even more precisely, in his famous 1868 work Constitutional Limitations, Cooley wrote that the generally accepted actions of the contemporaneous bran-ches of government should enjoy more weight than the public meaning of the times, the latter of which he would have classified as abstract originalism:
Contemporaneous construction may consist simply in the understanding with which the people received [any provision of the constitution] at the time, or in the acts done in putting it in operation. . . . In the first case it can have very little force, because the evidences of the public understanding, when nothing has been done under the provision in question, must always necessarily be vague and indecisive. But where there has been a practical construction. . . . Indeed, where a particular construction has been generally accepted as correct [by the different branches], and especially when this has occurred contemporaneously with the adoption of the constitution, and by those who had opportunity to understand the intention of the instrument, it is not to be denied that a strong presumption exists that the construction rightly interprets the intention.
Text and context should outweigh original sources. Among original sources, concrete originalism should outweigh abstract originalism, and concrete legal originalism should outweigh concrete political originalism because the Court was often assessing those actions through a legal lens. Again, the Constitution is a written law, and so this approach is fitting.
The Future of Conser-vatism in the Courts
This is no radical proposal. It is a refinement of the original method. It would help to suppress the attacks on the legitimacy of the judicial branch, which are perhaps the greatest modern threats to the rule of law and the stability of the constitutional system. Extraconstitutional philosophy, results-oriented decision making, unsystematic approaches to interpretation—the pitfalls of these departures from the Blac-kstonian method can be lar-gely avoided. Indeed, some judges in areas of constitutional law already follow it, at least to some degree.
For example, the late Walter F. Murphy and others wrote in American Constitutional Interpretation how some modern Commerce Clause opinions have recognized the value of concrete originalism and the primacy of early legal interpretations. Justice Clarence Thomas noted in U.S. v. Lopez (1995) the importance of relying on “early case law” rather than later case law when assessing the constitutionality of the Gun-Free School Zones Act of 1990. Indeed, it is no secret that through its chains of inferences, the Court had entirely replaced the original, legal principles that had divided inter- and intrastate commerce. Here and elsewhere, Thomas and others have recognized these sleights-of-hand, and they have demonstrated great courage in returning the old principles to their rightful places.
Some modern precedents may indeed be valuable. But the value of those precedents depends on their coherence with the originally recognized or established principles in early case law. A clear, systematic, hierarchical, law- and text-based originalist approach to constitutional interpretation is the future of American conservatism in the judiciary. The Blackstonian method is the framework for this approach, and constitutional theorists—or at least those who take the words of the Constitution seriously—have some consequential work to do. The stability of the constitutional system may well depend on it.

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