Originalism and Judicial Restraint

For many conservatives, the United States Supreme Court’s five-to-four decision in District of Columbia v. Heller (2008) was a landmark victory. For the first time ever, the Second Amendment was read as containing an individual right to bear arms. Subsequently, the Court took this newly minted individual right and incorporated it against the states (McDonald v. City of Chicago). This radical extension was also greeted with enthusiasm by conservatives.

However, one very prominent conservative jurist, Judge J. Harvie Wilkinson III of the United States Court of Appeals for the Fourth Circuit, wrote a scathing and controversial 2009 essay on Heller in the Virginia Law Review, “Of Guns, Abortions, and the Unraveling Rule of Law.” Wilkinson provocatively linked what he saw as the failure of restraint of Heller with the Court’s most unrestrained decision of the twentieth century, Roe v. Wade. Although this yoking of Heller and Roe was overstated, Wilkinson justly chastised the Court’s practitioners of original understanding—the interpretive method that relies on the text, structure, and history of the Constitution—for judicial overreaching on the issue of gun rights. (I wrote about Wilkinson’s article and the gun cases earlier here on Public Discourse.)

Wilkinson has broadened the scope of his argument for the indispensability of judicial self-restraint in his important, if flawed, new book, Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance. As he explains: “Over the last fifty years, we have witnessed the rise of theories that purport to unlock the mysteries of our founding document much as Freud proposed to lay bare all of human behavior and Einstein attempted to explain the universe.” These are the cosmic constitutional theories that “are taking us down the road to judicial hegemony where the self-governance at the heart of our political order cannot thrive.”

Wilkinson analyzes the leading schools of constitutional interpretation, concentrating on William Brennan’s risible living constitutionalism, Robert Bork’s originalism, John Hart Ely’s political-process theory, and Richard Posner’s cost-benefit pragmatism. Wilkinson temperately works his way through all these theories in lucid prose. He concludes that, despite the often considerable intellectual force of their proponents, they all lack, to one degree or another, what he calls “that republican virtue of judicial restraint.” This lack of restraint results in a regime of judicial tyranny that is lethal to a republican form of government.

The basic problem with Wilkinson’s view is the inclusion of originalism in this company. Whereas Brennan, Ely, and Posner advance theories that inevitably result in judicial supremacy—a point that is persuasively established by Wilkerson—originalism is the only interpretive approach that most consistently will restrain the Court. While Wilkinson is right about one criticism of originalism—its glib and often erroneous use of historical materials—this is a problem that is an abuse of originalism, certainly not its essence. In a fallen world, even a sound doctrine is open to such abuses. What originalism provides compared to the other theories reviewed by Wilkinson is the most successful method of interpretation available to restrain judicial adventurism.

The strength of originalism as a restraining force is found in the really controversial cases: those involving abortion, homosexual conduct, same-sex marriage, and so on. For originalists, these are easy cases. The history of the Fourteenth Amendment with respect to these issues is perfectly clear: they are not constitutional matters at all. The history, that is to say, is uniformly and unequivocally silent on these questions. Therefore, they must be resolved democratically. Wilkinson’s proper emphasis on judicial self-restraint is vindicated with originalism in these cases.

The problem with originalism’s use of history in constitutional interpretation is when the materials are dense and often contradictory. It is precisely in this area that Wilkinson’s critique is most penetrating. In Heller, for example, the majority opinion of Justice Antonin Scalia meticulously and honestly reviewed the historical record regarding the Second Amendment and concluded that it contained an individual right to bear arms. The dissent by Justice John Paul Stevens meticulously and honestly reviewed the historical recorded and concluded that the right was not individual but a collective, militia-related protection. How does the Court, through its most conservative members, boldly declare a new right when the historical basis is too difficult to sort out—far too difficult for justices who have no formal training as historians?

The Heller majority then extended its novel reading of the Second Amendment to the states through the due process clause of the Fourteenth Amendment in McDonald v. City of Chicago. In the majority opinion by Justice Samuel Alito, the Court invoked the established law on incorporation and applied the right invented in Heller to all levels of government. The problem is that incorporation is nothing more than a judicially manufactured revolution with no historical justification. An originalist may, as a matter of broken-eggs-can-not-be-mended prudence, accept that various provisions of the Bill of Rights have been selectively incorporated as a legal reality that is not going away. But why would originalists extend this dubious doctrine? The Court is now the final word on trigger locks, concealed-carry laws, and a host of other knotty regulations for which it has no competence. McDonald resembles nothing so much as a product of the results-driven jurisprudence of the Warren Court.

In his concurring opinion in McDonald, Justice Clarence Thomas, the most rigorous and consistent originalist in the history of the Court, rejected the due-process method of incorporation and instead advanced the argument that the “privileges or immunities” clause of the Fourteenth Amendment should be the incorporating instrument. Despite what appears to be a thorough historical analysis, Thomas fundamentally misinterpreted that clause. A real legal historian, the formidable Professor Philip Hamburger, has established that the clause has nothing to do with incorporation; rather, he contends that it was promulgated to protect comity-clause rights of free blacks. Wilkinson concludes that “even the estimable Justice Clarence Thomas has fallen prey to originalist activism” in McDonald.

Of course, in construing a constitutional provision, the use of history is inevitable. What Wilkinson advocates is greater judicial humility in evaluating complex historical data and restraint in deciding cases, particularly in contentious areas, based on them. In language that all originalists should endorse, he sets forth a salutary conservative principle:

What’s needed is not yet another theory but an escape from theorizing. Convinced that they possess prearticulated frameworks that dictate unassailable results, theory-driven judges and scholars have forgotten that wisdom lies simply in knowing the limits of one’s knowledge, that good sense is more often displayed in collective and diverse settings than in a rarefied appellate atmosphere, and that the language, structure, and history of law serve best as mediums of restraint rather than excuses for intrusion.

Wilkinson’s argument against living constitutionalism, political-process theory, and pragmatism is balanced and well-made. But he wrongly includes originalism in his bevy of cosmic theories. What Wilkinson has cogently demonstrated in this book is the flaw of an overconfident reliance on history that originalism must vigilantly guard against. The restraint he calls for is incontestably needed, and in this respect he has made his case for greater judicial caution very effectively.