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.