Originalism on American Terms

America on Trial: A Defense of the Founding
by Robert R. Reilly.
Ignatius Press, 2020.
Hardcover, 384 pages, $28.

Originalism’s Promise: A Natural Law Account of the American Constitution
by Lee J. Strang.
Cambridge University Press, 2019.
Paperback, 326 pages, $35.

Reviewed by Jason Ross

A growing group of political theorists, if not yet historians, have of late been writing about the inevitable collapse of the United States’ constitutional order, a genre that seemed to spike during the annus horribilis of 2020. It is not surprising that near to or just after the end of that new year saw the publication of not just one, but two, spirited defenses of the Constitution and American founding: Robert Reilly’s America on Trial: A Defense of the Founding, and Lee Strang’s Originalism’s Promise: A Natural Law Account of the American Constitution.

Each book is masterful in its own way. Each author brings an impressive depth of research and scholarly erudition to his subject. Each author defends his thesis with intellectual force and rigor. And yet neither defense of the framers and their work, nor all such defenses put together, may be sufficient to return the government established by our framers to any constitutional limits, or even to prevent a now largely lawless bureaucratic machine from grinding in its gears those patriots who make any serious appeal for a recurrence to fundamental principles.

The overwhelming spirit of our day is of a rejection of faith in, even a mocking contempt for, the Constitution—its framers and their experiment in self-government. And yet, both books in their way serve as encouraging reactions against this rejection of our civic faith. Strang, a professor of law at the University of Toledo, acknowledges a certain reactionary nature to originalism, but asserts, “[t]he practice of constitutional interpretation at the Founding was originalist, as that label is now understood.” The originalist mode of interpretation was “inchoate” during the founding era and early republic, he explains, but was eclipsed by the Progressive political and intellectual impulses that coalesced in the New Deal’s rejection of American founding principles. The intent of the framers was then placed into “jurisprudential exile” during the three-decade spree of judicial activism that took place under the tenures of Chief Justices Warren and Burger.

Strang traces the intellectual history of modern originalism, by which legal scholars, including Robert Bork and Raoul Berger, attempted to tame the imperial judiciary by binding it to the text of the Constitution as its framers understood it. The doctrine has been remarkably successful politically, playing a significant role in the Reagan revolution, contributing during the Constitution’s bicentennial to a renewed veneration of America’s founders, and providing the impetus for one of modern conservatism’s most influential organizations in the Federalist Society.

Power, however, will not be easily tamed, even that power that cloaks itself in the pretenses of dispassionate impartiality and legal erudition. The Progressive legal elite remain intoxicated with the judiciary’s power to remake society according to their will and have set out to undermine originalism, even to mock it to death by a thousand trivial questions (and a few serious ones).

Despite undeniable successes, then, originalists have found themselves on the defensive. This defensiveness accounts for the complexity of what Strang refers to as “second generation” originalism. He identifies five ways in which originalists have responded to these critiques. First, they have largely abandoned the effort to assert the intent of the framers and have instead focused on the original meaning of the Constitution. Second, they have acknowledged that not all questions admit of a single correct interpretation, but that some questions require constitutional “construction,” or the application of some constitutional principle in the resolution of a specific case. Third, they have conceded that some nonoriginalist precedent should be maintained. Fourth, they allow for some amount of judicial discretion. Finally, many reject positivist assumptions implied (or explicitly stated) in earlier appeals to the intent of the framers and they directly connect their accounts of originalism to normative appeals. Strang concludes from the robust range of positions that exist within each of these research agendas: “[t]hese are the best of times for originalism …”

Yet these are also the worst of times for the Constitution. Strang acknowledges that “originalism’s success [may be] undermining its long-term coherence,” especially when the term can be co-opted by a leading legal scholar, Jack Balkin of Yale Law School, and made the foundation of a so-called “living originalism.” At this point one might ask: Is originalism as a paradigm spent? Strang does not think so. Instead, it requires a return to what he calls “the conventional view of the Constitution as an intentional lawmaking act for the sake of the common good under which view the Constitution’s original meaning was the mechanism to communicate the Constitution’s legal directions among the Framers, Ratifiers, and Americans.” For a “conventional” view, though, this statement is technical and precise in a way that makes one wonder whether, to rescue originalism, something unconventional is being done.

In particular, the phrase “the common good” seems conventional. It is a phrase that can be and has been uttered by individuals of every political persuasion, regardless of their differences, across American history. We can see references to the common good today in the speeches of Barack Obama and Donald Trump. We can see it in our founding era in the writings of Publius and Brutus. The term, then, is utterly conventional, even if it has been used so broadly as to leave it without any conventionally accepted definition.

To be clear, Strang does not leave the term “common good” undefined, though his definition of it is “intentionally thin.” But rather than anchoring his definition in the writings of the founding generation, Strang suggests that the missing piece in American originalism, the founders’ intent that must be consulted to hold together this capacious theory, is found in the natural law theory articulated by Saint Thomas Aquinas. Without impugning Aquinas in any way, it is notable (but was not noted) that he was not cited in the debates in the Federal Convention of 1787, the state ratifying debates, in the Federalist essays, or in any Antifederalist essays. Again, this is not a discredit to Aquinas or the natural law tradition, though some may see their absence as a discredit to the American founding. Instead, this observation is merely to raise the question of whether an originalism that must be defined and defended by an intent foreign to the formation or text of the Constitution is rightly called by that name.

It could be that the intent of the framers and the doctrine of originalism are so ill-advised, incoherent, or even immoral that their experiment in constitutional self-government must be subsumed, superseded, or supplanted by some higher reason. This, in effect, has been the argument of nonoriginalists going back to the New Deal. But this critique of the American founding and our political tradition has always come from the Left. Today a similar critique is coming from a segment of the Catholic Right. Robert Reilly challenges this conservative Catholic critique—exemplified most notably in the work of Notre Dame professor Patrick Deneen.

Rejecting Deneen’s critique of the founders, Reilly aligns himself with John Courtney Murray who, half a century ago, reconciled Catholicism with liberal pluralism under the banner of the Lincolnian “American proposition.” Deneen denounces the founders, especially James Madison, for having successfully established a liberal society “that commends self-interest, the unleashed ambition of individuals, an emphasis on private pursuits over a concern for public weal, and an acquired ability to maintain psychic distance from any other human, including to reconsider any relationships that constitute a fundamental limitation on our personal liberty.” Reilly quotes Deneen’s “fear that Americans will have to break with America, and seek to re-found the nation on better truths.”

This is not your father’s conservatism, and Reilly perceptively concludes, “Deneen’s views recall William Lloyd Garrison, the abolitionist who believed that the U. S. Constitution was a ‘covenant with death, an agreement with hell.’” Indeed, Deneen’s critique may go further than Garrison’s; the latter was unshakeable in his belief that the American proposition was self-evidently true, while Deneen would re-found America “explicitly in departure from the philosophic principles that animated its liberal Founding.” Deneen’s critique is in fact closer to that of Nikole Hannah-Jones of the New York Times 1619 Project who judged, “our democracy’s founding ideals were false when they were written.”

Reilly is to be commended for setting himself against the day’s most penetrating critic of America’s founding. But in defending the founders against this critique, Reilly does not defend them on their own terms. Instead, his narrative extends back to the Thomistic natural law tradition before this tradition was allegedly corrupted by the Protestant Reformation. When Reilly does reach the American founding—in the ninth of eleven chapters—he strains to connect it back to these pre-Protestant sources, holding “the Founders used the same language as Hooker, Bellarmine, Suarez, Sidney, and Locke—in other words, of the natural law tradition reaching back to Aquinas, Cicero, and Aristotle.” As with Strang, Reilly does not note (but must have noticed) that the founders did not cite Aquinas, seldom cited Aristotle, and rarely cited Cicero. And as with Strang, Reilly’s originalism is one that seeks to honor and uphold the Constitution while overlooking the words of those who framed it.

But then again, any who have read these words know that some of them are quite shocking, even in places indefensible. Charles Pinckney of South Carolina brazenly declared at the Constitutional Convention, “If slavery be wrong, it is justified by the example of all the world.” Connecticut’s Oliver Ellsworth agreed. “Let every State import what it pleases. The morality or wisdom of slavery are considerations belonging to the States themselves. What enriches a part enriches the whole …” Even the pious Roger Sherman, also of Connecticut, conceded to the South that “as the States were now possessed of the right to import slaves, … the public good did not require it to be taken from them …” These were among the comments that shocked the aforementioned Garrison, prompting him to reject the Constitution as having been formed by a “bargain … at war with the principles of morality.” Garrison’s critique of the founders fueled a sectional conflict about their intent regarding slavery that culminated in civil war.

The influential Progressive historian Charles Beard would later seize on Madison’s notes as having revealed other shocking truths. The Constitution was established to protect property rights, the protection of property rights necessitated inequality between different economic factions, economic factions were at war not just in ordinary politics but in the formation of the Constitution, and the Constitution had therefore been rigged in favor of certain interests from the very beginning. Beard concluded, “The overwhelming majority of members, at least five-sixths, were immediately, directly, and personally interested in the outcome of their labors at Philadelphia, and were to a greater or less extent economic beneficiaries from the adoption of the Constitution.” Beard’s critique of the founders contributed to the Progressive revolution in politics that helped to usher in the modern administrative state.

Finally, Deneen, shocked by the rot of contemporary culture, traces the cause of this rot to modern liberalism. He argues that liberalism has always aimed for

“the liberation of [our] appetites from the artificial constraints of culture.… From the outset, proponents of liberalism understood that cultural constraints over expression and pursuit of appetite were obstacles to the realization of a society premised upon unleashing erstwhile vices (such as greed) as engines of economic dynamism, and that state power might be required to overturn cultural institutions responsible for containing such appetites. Today, with the success of the liberal project in the economic sphere, the powers of the liberal state are increasingly focused on dislocating those remaining cultural institutions that were responsible for governance of consumer and sexual appetite—purportedly in the name of freedom and equality, but above all in a comprehensive effort to displace cultural forms as the ground condition of liberal liberty.”

And Deneen claims to find, especially in the writings of James Madison, evidence that “The Founders would not be surprised that a populace shaped by the modern form of private, material, individual, expressive liberty would displace allegiance to local and civic liberty, and that all attention and focus would be redirected to Washington, D.C., as the source and guarantor of expressive liberty.” It is too early to tell if Deneen’s critique will have the lasting impact of Garrison’s or Beard’s. But with enemies like this, perhaps it is no wonder that these friends of the American Constitution have shied away from the words of its founders, instead defending the Constitution in the terms of sources that, while appealing, were nonetheless not present in the political discourse of the founding.

If even these friends of the American founding have chosen not to defend the founders on their own terms, can there be a future for originalism—and, more to the point, can there be a future for the Constitution? The American people throughout history have expressed a reverence for their nation’s founders and a respect for their intent, but critics like Garrison, Beard, and Deneen would argue that the American people have been the dupes of pretended patriots, lacking the courage or intelligence to recognize the ugly truths that Madison (of all people) recorded for us to see. Rather than a return to the intent of the founders, these critics may argue that what Americans need most is knowledge of their founders’ nefarious secret intent, as it is only by this knowledge that we can free ourselves from the corrupt Constitution with which we have been shackled.

Alternatively, one may conclude the founders are not the issue, but that the American people are simply destined to have a moral panic every four-score years. One might see this pattern begin in the form of Garrison’s perfectionism that refused to accept that slavery, as a fundamental issue of moral principle, should have to be solved by political means. One might see it reappear in the form of Beard’s Progressive prudishness about the scandal of self-interest in politics and the wave of reform movements this recognition spurred. Finally, one might see it again today in the virulent spread of the Left’s gnostic “Woke” religion, against which perhaps Deneen is right that our only hope is not in politics but in the forceful public reassertion of another dogma.

Without belittling the American people for their earnestness, and their naive assumption that their leaders share this honorable trait, let us note that our nation’s frequent recurrence to moral critiques of our founders points to a paradox. Americans were, and have always been, a people constituted politically—by a Constitution drafted and ratified through a deliberative process—while also being a people who deprecate politics. We can manage this tension, but only for a time, by imagining our nation’s founders as having been above politics, and as having created a system that rescues us from the sordid world of politics. But politics has a way of intruding into our dream world and shaking us from our slumber.

Perhaps we should at last accept that while it may be inspiring (and easy!) to celebrate the genius of our founders and invoke the mantra of liberty, the real lesson they teach us is that the never-ending activity of self-government is hard. Perhaps this is why the republics that preceded ours did not last. Perhaps this is why our founders never ceased to recognize the American experiment in self-government as an experiment, and one not guaranteed of success. Perhaps this is also why Madison—who among all founders was the most candidly realistic about republicanism’s propensity to the dangerous vice of faction—chose to publish records of the debates about the Constitution’s formation that demonstrate to history how the spirit of faction was involved in the founding itself. Records make it very difficult to ground a morally attractive doctrine of originalism on the intent of the Constitution’s morally flawed framers.

Despite the presence, even prevalence, of the spirit of faction at the founding, Madison would not countenance “destroying the liberty which is essential to its existence.” This remedy to faction “is worse than the disease.” But why? Perhaps Madison, among other founders, ratifiers, and members of their generation, believed there was some intrinsic value to liberty that made the burdens of self-government worth bearing, and that there was some intrinsic value to each individual person that makes him or her worthy of that privilege. If there is to be an originalism that defends America’s Constitution on American terms—and, more to the point, if the Constitution is to survive for long beyond the apocalyptic year 2020—it will only be by recovering the moral significance of liberty that makes the burdens of self-government worth bearing.

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Jason Ross is Associate Professor and Department Chair for Government and Public Policy in the Helms School of Government at Liberty University.