Considered, Confirmed Originalism is Not Elitism

October 24, 2005

Much of the body of constitutional law is a mess — a convoluted mess. Contrary to so-called anti-elitist sentiment out there, it’s going to take known heavyweights to clean up that mess. We’ve got them; why not use them?

Unfortunately, some conservative observers of the Miers nomination have fallen into an anti-elitist trap. They correctly distrust over-intellectualizing — or at least the snooty, pseudo-intellectualism that emanates from the academic Left. They also have a well-placed aversion toward “over-lawyering,” including the tendency to make the simple more complex.

Thus, they instinctively react adversely to the argument that Ms. Miers doesn’t appear to have the optimum background to go toe-to-toe against some of the seasoned liberal justices on the Court, no matter how committed she says she is to the judicial philosophy of originalism.

They insist that constitutional law is not (and should not be) nearly as complex as many believe it to be. After all, the Constitution was written in plain English, and reasonably intelligent people can understand its meaning. The problem, they say, is that it has been “over-lawyered” and perverted through generations of “legal scholarship.”

Now, don’t get me wrong. I’m partially sympathetic to this line of thinking. I do think some constitutional jurisprudence is artificially complex. But more often this is due to justices inventing legal theories and rationales to justify pre-determined results rather than engaging in “over-lawyering.”

Regardless of how this mess was created, the best chance we have of correcting it is to employ the best conservative constitutional scholars to undertake the task.

Constitutional jurisprudence requires a strong background in constitutional law. All fantastic idealism aside, no Supreme Court justice, including Scalia or Thomas, will have the luxury of simply ignoring 200-plus years of Supreme Court precedent.

For originalist justices to participate in undoing bad law, they will have to be intimately familiar with that law. That law, unless overruled by the Court, has the force of law and must be reckoned with. You don’t just magically erase it. You don’t ignore it. You confront it head on. You must address any errors in order to correct them. So you must dig into it, study it, affirm it, distinguish it or rewrite it.

Like it or not, the vast majority of lawyers learned little, if any, judicial theory in their constitutional law courses. They learned the case law, without examining whether it was developed through activism, much less whether such activism is proper. Irrespective of what you may think the Constitution says or means, or even what the Framers may have understood it to mean, law professors teach that it means — by force of law — what the Supreme Court has said it means over the years. The constitutional law student’s bible is not the Constitution; it is the body of cases that have interpreted it.

In those schools whose constitutional law courses include discussions of judicial philosophy, you can safely bet the instructors are proponents of liberal judicial activism and the concept of the Constitution as a “living document.” I would bet that most of the professors harbor a contempt for originalism that rivals Karl Marx’s disdain for capitalism.

I firmly believe that for any justice to have a significant impact on restoring the Constitution to its originally understood meaning, it won’t be enough that he pays lip service to the popular cliche not to “legislate from the bench.” Preferably, he will have developed his originalist philosophy over a considerable period of time, during which he will have considered and “unlearned” some of his law school indoctrination.

Those best equipped to undo the damage wrought by years of constitutional misinterpretation will have devoted a large portion of their careers to developing and honing a judicial philosophy that will withstand all pressures, intellectual and political, once they become a part of the Court.

The universe of potential justices (SET ITAL) who can be safely relied on (END ITAL) to have given the subject enough thought to have unlearned the law school dogma is quite small. True, there may be untold numbers of potentially great originalist justices out there. But we have no way of knowing with the “stealth candidates,” and there is simply no reason to take the risk when we don’t have to.

I am not offering some cleverly disguised argument to mask an elitist preference for Ivy-League-educated judicial scholars. I’m not worried as much about the school; there are plenty of good law schools out there.

But given the crapshoot that choosing judges has proven to be for well-meaning Republican presidents, I just think it would have been far more prudent for President Bush to have chosen among those jurists, practitioners and scholars who have demonstrated their originalist wares in the course of their legal careers. The stakes are too high to gamble on someone with no track record in the things that matter most for such an appointment — no matter how well President Bush may believe he knows Harriet Miers.