Justice  /  Argument

Conservatives Don’t Have a Monopoly on Originalism

The text and historical context of the Constitution provide liberals with ample opportunities to advance their own vision of America.

Last month, the conservative writer Ramesh Ponnuru published an op-ed in The Washington Post arguing that Democrats “have lost the debate about the role of courts in our democracy.” He detailed how conservatives over two generations “developed a comprehensive strategy, including politically powerful rhetoric,” to shift the federal courts toward their way of thinking. “Judges shouldn’t rewrite the law in the guise of interpreting it, they said; judges should be umpires, not players taking a turn at bat,” wrote Ponnuru, the editor of National Review. “Conservatives warned against letting judges have wide leeway to fill in the meaning of apparently vague language, instead urging them to be constrained by what the informed public understood the words of the law meant when it was ratified.” By which he means, of course, originalism.

Ponnuru is right. Conservatives have won this debate—or at least are winning it handily—because they recognized ages ago that they’re engaged in a political war, that the war is about the substantive meaning of the Constitution, and that politically effective rhetoric is critical to victory. The left, with a few notable exceptions I’ll highlight below, has not. That must change, quickly and drastically, if there’s to be any hope of preserving liberal governance from the Supreme Court supermajority we may have to live with for decades and from the broader threats to constitutional democracy we’re witnessing on a scale unequalled since the Civil War. And the left should wage this war on the conservatives’ own turf.

Ponnuru might be right about conservatives’ rhetorical success, but the tacit premise of his essay—that conservatives alone embrace originalism—is dead wrong. That could have been a fair point in the 1980s, when President Reagan’s second-term Attorney General Edwin Meese, Judge Robert Bork, Justice Antonin Scalia, and other luminaries of the new legal right first hoisted the banner of originalism—and liberal Justice William Brennan responded with a dubious counterpoint slogan, “living constitutionalism.” But not today. While some in the media and even in the Democratic Party conflate originalism with legal conservatism, a compelling contrary vision has emerged on the left: that rigorous fidelity to the text and history of the Constitution—a holistic interpretation that includes its amendments as well as legislative debates at the time, as opposed to conservatives’ penchant for cherry-picking isolated provisions out of context—often yields liberal results.