Why It's So Hard to Have a Constitutional Revolution, Part II

JB

All the furor over what Sam Alito did or did not do in the 1991 Pennsylvania abortion case, deflects attention from a far more important fact, which Stephen Labaton explores in Satuday's New York Times. Like Harriet Miers before him, Alito is likely to be strongly pro-business, and businesses are gearing up to spend large amounts of money to ensure that he is confirmed.

Movement conservatives and religious conservatives are for the most part delighted with Alito. But for those conservatives in the movement who want a return to a pre-New Deal Constitution, or one with significantly reduced federal powers, I've got news for you. Samuel Alito ain't your guy. In fact, the only Justice on the Supreme Court who takes such views seriously is Clarence Thomas, and if he had made his views known at his confirmation hearings, he wouldn't be on the Court either. All the signs indicate that Alito will support shifting some power back to the states, perhaps even a bit more than Justice O'Connor. But he's not the revolutionary you've been hoping for. He is, however, like Harriet Miers, what business has been hoping for.

The Supreme Court tends to cooperate with the dominant national political coalition. Even with Republicans in charge of all three branches of government, movement conservatives do not drive that coalition. Business interests do.

Business interests do not want a constitutional revolution in federal state relations. They want a flexible, agile, and supple federal power that will deregulate selectively to allow businesses with the most political clout to do most of what they want, promote their interests with generous (and often unnecessary) tax breaks and subsidies, and employ federal law to preempt state legislation that they believe is unfriendly to them or regulates in conflicting directions.

No doubt most businesses want courts to cut back on environmental and consumer protection, and limit antitrust and labor regulation; but unlike the late 19th century, the most influential business interests in the country want courts to do this with the flexible tools of statutory interpretation and by deferring to administrative agencies run by Republican administrations. The goal most definitely is not to hold vast swaths of federal regulatory law unconstitutional because that would threaten the ability of the Congress and the President to pass national laws (or enact federal administrative regulations) and engage in mercantilist policies that Republican political contributors like.

A return to a federal government of "limited and enumerated powers," or a return to "the original understanding," or to the "Constitution in Exile," or whatever you want to call it, just isn't going to happen, because the national political coalition and its most powerful political constituents don't want it to. Sure, politicians and senators and judges will posture and preen and make noises about returning to the framers' intentions, and strict construction, and not legislating from the bench. But don't believe a word of it. That's not how the system of judicial appointments works. That system produces candidates who broadly reflect the dominant national political coalition's goals, not because they have made corrupt bargains with politicians always to rule in that way, but because people who sincerely think that this is the best interpretation of the Constitution are the most likely to get appointed to the bench in the first place. Those who make clear that they want a full scale revolution may get appointed in dribs and drabs, but they will not get a chance to dominate the bench.

The other day David Bernstein, a very accomplished libertarian scholar and legal historian, complained over at the Volokh Conspiracy that "originalism was in a state of crisis."

If Justice Scalia, originalism's supposed great champion, is unwilling to overturn or even go out of his way to distinguish as anti-originalist opinion as Wickard v. Filburn (holding that growing grain on one's own land for consumption on one's own farm can be regulated under Congress' power to regulate "interstate commerce"), then what is left of originalism?

One could say that it's simply "too late" to reconsider sixty-two year old precedents like Wickard. But why sixty-two year-old precedents, and not thirty-two year old precedents (i.e., Roe v. Wade)? Scalia's fainthearted originalism begins to look a lot like, "I got into this business to overturn Warren Court decisions, and I'll use originalism as tool to that end, but I'm not especially interested in reconsidering New Deal precedents.". . .

[S]imply pulling a Scalia, and begging off from the tough issues as distractions from what I beleive he sees as the real task of preventing the liberal elite from enacting its agenda through the judiciary just won't do. Originalism becomes a weapon to be pulled out when convenient, not a consistent theory of interpretation. That's culture war politics, not originalism, and Scalia's failure to identify any theory of originalism that justified his opinion in Raich dramatically lowered my estimation of him as a jurist.

I do not think that David's hope will be realized. If originalism of the sort that movement conservatives seek is in crisis, it's because it was never a serious *practical* theory of constitutional interpretation that real courts could employ across a wide range of constitutional issues, including, most notably, the key questions of federal power and civil rights. Originalism-- by which I mean here an appeal to how the adopters expected the public meaning of the constitutional text to be applied in concrete circumstances-- is at most one permissible modality of constitutional interpretation. It simply will not bear the weight of being made the foundation of constitutional legitimacy, for reasons I've explained elsewhere.

As David's discussion suggests, originalism as used by politicians since the 1960's has been little more than a political slogan, used to curry votes by attacking the liberal Warren Court, and particular decisions of its successors-- decisions that, ironically enough, were increasingly written by Republican appointees. However, movement conservatives, who included many intelligent and serious men and women, believed the hype. They set out to study the Constitution's history in order to produce a coherent and consistent originalist jurisprudence. In so doing they enriched our knowledge of the Constitution and American political institutions immeasurably. But what they produced was a jurisprudence that no national political coalition would ever seriously think of adopting. And the earnest men and women who created this jurisprudence forgot what I believe to be the central lesson of constitutional interpretation over the country's history: what shapes the structure of positive constitutional law over the long run is not clever arguments and dueling quotations from the framers but larger social and historical forces, which shape political coalitions and produce the sort of jurists who reflect the play of political forces at the time of their confirmation. The structural features of the appointments process, combined with the fact that we have a multimember Supreme Court whose views in closely contested cases tend to be dominated by "swing" Justices, means that the Court's opinions, over time, will not reflect any consistent or coherent theory of constitutional interpretation. What they will reflect are the needs and aspirations of the dominant national political coalition. Asking such a Court to adhere to the theories of originalism of movement conservatives is like asking King Canute to hold back the tides, and it is no wonder that movement conservatives, for all their victories in the courts, have found themselves increasingly frustrated.

The Supreme Court is not theirs. Nor will it be in the forseeable future. It is, as it always has been, in the hands of the dominant national political coalition, which currently features a pro-business Administration and a pro-business Congress. That is why we got John Roberts. That is why we are getting Sam Alito.