Monday, June 11, 2018

Debating Constitutional Interpretation While the Republic Unravels

by Michael Dorf

[**Updated] Tonight I'll be debating Georgetown Law Professor Randy Barnett at the Soho Forum. I'll be arguing against the following resolution: "The U..S. Constitution should be interpreted and applied according to ​the original meaning communicated to the public by the words of the text." The event is sold out, but I believe it will be streaming live via the Reason Magazine FB page. In any event, I'll post recorded video back here as soon as it's available. (Video is here.  Podcast is here.)

Meanwhile I'm going to depart from my custom of previewing my remarks when I'm on panels in order to briefly say something "meta" about tonight's debate. For the gist of my substantive position, readers can consult any number of my prior blog posts (such as this one) and academic articles (such as this one) discussing originalism.

My meta point is that the stakes in tonight's debate are modest. I have previously argued that public meaning originalism--which is what Prof. Barnett will endorse during tonight's debate--does little to constrain judges and that therefore, the practical stakes in the debate over originalism are low or at best academic. I want to reiterate that point, but I also want to note that the stakes are modest in another, even more important, sense.

The critical question facing the US and other constitutional democracies in the world today is not how to interpret their constitutions. The critical question is whether these nations will survive as constitutional democracies at all. Hungary, Poland, the United States, and now Italy are led by populists with authoritarian tendencies who frequently express and sometimes act on views that are inimical to basic constitutional norms. There is no guarantee that constitutional democracy here or elsewhere will survive.

Weighed against the prospect of the death of the American republic, the distance between Justices Ginsburg and Gorsuch is small. From my perspective, far better nine Justices Gorsuch than one President Trump. I wish that my conservative friends would accept the converse: better nine Ginsburgs than one Trump. And some principled never-Trump conservatives have indeed taken that view. Unfortunately, too many "but Gorsuch" conservatives who find Trump personally repugnant seem to have made the opposite calculation--holding their noses and accepting Trump in order to get one and maybe more Gorsuches.

In so doing, my conservative and libertarian friends misunderstand the true threat we face. That is at least a tad ironic, coming from scholars and public intellectuals who claim we are bound by the original understanding.  After all, from their study of history, the Framers understood all too well the tendency of democracy to devolve into autocracy via the election of a demagogue. Having recently concluded a semester-long seminar reading Publius with my students, I'll end with Alexander Hamilton's warning, which seems particularly apt for the libertarians who make up the Soho Forum's principal audience. It comes in the very first of the Federalist Papers:
a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.


Steve Davis said...

Speaking on behalf of those with libertarian-ish views, I have a couple of comments.

You cannot expect libertarians and conservatives to say "better 9 Ginsburgs than 1 Trump" in the way that you would say "better 9 Gorsuches than 1 Trump", because both Gorsuch and Trump are on the opposite side from your political perspective. It's easy for you to choose Gorsuch over Trump. From a conservative standpoint (though not necessarily from a libertarian perspective), 9 Ginsburgs would be a total and complete disaster. Trump, on the other hand -- well, it's less clear what you are getting, from a conservative standpoint. It's a tough call.

Conservatives and libertarians see both authoritarianism and Trump differently from the way a left-liberal person sees them.

To a left-liberal person, Trump embodies authoritarianism. To a conservative or libertarian, it's more ambiguous, and, especially, it's not so clear that he's 100% more authoritarian than his predecessor, or than Ginsburg. To a conservative or libertarian, Gisburg and Obama represent the continued expansion of the regulatory welfare state, the nanny state, a state that is forcing people to adopt new social norms. To a libertarian or conservative, that is a form of authoritarianism. Left liberal people don't see it this way. The two sides have very different ways of appraising what is authoritarian and what isn't. For instance, Trump has cut the corporate tax rate and been fairly vigorous about deregulation. A left-liberal person doesn't see that as anti-authoritarian, but a conservative or libertarian person does.

Conservatives and libertarians also see Trump himself differently. I think he's awful: obviously unqualified, ignorant, misogynistic, contemptuous of the law, and pandering to racism and xenophobia. But I care most about the practical consequences of his Presidency than about him as a person. It's not clear to me that he is a clear and present danger for the "unraveling of our republic." He may just be a blowhard who will say whatever it takes to whip up his constituents and win the next election. If you are a rational libertarian or conservative, you may be willing to take the risk of that interpretation of Trump to avoid the 100% certainty that you will unhappy by choosing the alternative candidate. I tend to think we will survive Trump just fine, for all his awfulness. I hope I'm right. I didn't ever support him, but I know intelligent libertarian and conservative people who have, and I can understand people with non-left/liberal views making this calculation.

Virginia Postrel, libertarian editor of Reason magazine, made an argument like this during the 2000 election. She reasoned that with George Bush, it wasn't clear what you were going to get from a libertarian perspective. But Al Gore was the devil. As it turns out after the fact, that assessment was probably wron -- an argument could be made, for instance, that Bill Clinton was a more libertarian president than George Bush -- but it wasn't wholly crazy at the time.

The reality is: we support the candidates that line up with what we want to see done. And then we make arguments from principle to defend our choices. Almost always, those arguments from principle are being made to argue against the legitimacy of the candidate on the other side, which calls into question how much we really, truly value arguments from principle. Very few of us will, in reality, choose principle over politics when we choose our candidates. If we have to pick the bad man to support our political agenda, that's what most of us will do.

Shag from Brookline said...

Does Steve have a mandate to speak " ... on behalf of those with libertarian-ish views, ...." whatever such -ish views are? Or does he speak merely for himself, as I assume is the case with Mike? When I comment at this Blog, I speak for myself.

Perhaps some readers of Steve's comment who have "ibertarian-ish views" might wish to comment on Steve's closing sentence:

"If we have to pick the bad man to support our political agenda, that's what most of us will do."

Joe said...

"To a left-liberal person, Trump embodies authoritarianism. To a conservative or libertarian, it's more ambiguous."

Trump promotes government power, especially arbitrary government power, in a range of ways, but "conservatives and libertarians" are on one side of the divide here according to the first comment. Maybe, it depends on what sort of "libertarian" you are.

Obama is, e.g., promoting "a state that is forcing people to adopt new social norms." How so? The reference that readily comes to mind here is same sex marriage. But, that was a libertarian victory, I would say, as noted by the number of libertarians pushing for it.

The old policy "forced" a certain moral choice to be denied government recognition which in various ways burdened their economic lives. Government recognition here does not "force" people to "adopt" the "norm" though. No one is forced to marry someone or agree that easy divorce is a good thing etc. To the degree this requires public accommodations to provide service, as akin to serving black people, it isn't norm adoption either.

Suffice to say that surely liberals promote policies that libertarians can disagree with though even PPACA has a free market aspect. But, overall, especially given Trump is much more arbitrary, the libertarian all things considered should be concerned. That is, depending on the specific kind of libertarian involved.

Joe said...

Regarding the "force" part, Trump and his supporters have put strong pressure in that respect, including opposing certain people and institutions that disagree with them as in effect evil (a word that matches some of their rhetoric, particularly court evangelicals).

Especially when Clinton would have had a Republican House and at best a very closely divided Senate (51-49 or even 50-50), again, unless you support a certain type of libertarianism, the horrors of her being so grave that you throw you weight with Trump is dubious.

As to surviving him, I think we can, as we did Jim Crow et. al., but it is clearly a low point with grave concerns.

Shag from Brookline said...

Steve in the closing paragraph of his comment employs the word "principle" four times, concluding this in the penultimate sentence:

"Very few of us will, in reality, choose principle over politics when we choose our candidates."

Can it be assumed that his use of "us" and "we" and "our" references. relate to Steve's claiming to speak " ... on behalf of those with libertarian-ish views, ..."?

I'm curious as to whether "libertarian-ish views" are principled.