Originalism or Conservatism? 

“Bork v. Burke.” That was the delightful title of an essay by the generally conservative Columbia law professor Thomas Merrill, published three decades ago in the Federalist Society-sponsored Harvard Journal of Law and Public Policy. 

Both of Merrill’s titular antagonists had impeccable conservative credentials. Robert Bork, a founder of the modern originalist movement, was surely the most prominent conservative jurist of the late twentieth century. (He was also my professor for two superb classes in law school.) Edmund Burke’s Reflections on the Revolution in France is sometimes viewed as the ur-text for modern conservative thought. And yet, as Merrill showed, their political philosophies were fundamentally different, and even incompatible. And “at least for someone who puts a lot of stock in conservative values,” Merrill contended, “Burke beats Bork.” 

Thirty years later, originalism is in some ways vastly different from the fledgling version that Bork propounded. In the academy, originalist theorizing has become infinitely more sophisticated. In the courts, the theory’s (or the theories’) influence has grown discernibly. In a bruising political battle, Bork’s then controversial constitutional philosophy led to the defeat of his nomination to the Supreme Court. Today, a majority of Supreme Justices unapologetically hold themselves out as originalists. 

Do these changes neutralize Merrill’s criticisms? On the contrary: with respect to present-day originalism, Merrill’s basic argument is even more pertinent, and more urgent. That is because, odd though it may seem, originalist constitutional jurisprudence has become a potent threat to conservative commitments on the political scene today.   

Conservatism According to Burke 

Start with Burke’s Reflections. In the course of an impassioned plea against the reckless attempt to remake society in accordance with the prescriptions of an abstract theory, Burke touched on many themes and topics. But two subjects stand out as especially important: political wisdom and political authority. 

First, wisdom. Ever since Plato, thinkers have offered elaborately reasoned theories of how government should be constituted and conducted, and have sometimes attempted to use law or force to restructure a political system in conformity with such theories. The French revolutionaries against whom Burke reacted were engaged in just such an attempt; they were working furiously to reconstitute France in accordance with an abstract list of the ostensible “rights of man.” 

But this kind of political rationalism, Burke thought, was the epitome of folly. Not that he was opposed to applying reason or reflection to political affairs; that of course is precisely what his own writings and speeches were doing. But a human society is a vastly complex and even mysterious thing, Burke insisted, and human reason is a frail and fallible faculty. We do best, therefore, to treat with presumptive respect institutions and customs that have developed and endured for generations, to try to discern the reasons intrinsic to this political and social heritage, and to make reforms cautiously and in accordance with the wisdom that this heritage has bequeathed to us. 

Conversely, glib prescriptions derived directly from general principles or rights, from “the nakedness and solitude of metaphysical abstractions,” are almost certain to be misguided. “The pretended rights of these theorists are all extremes; and in proportion as they are metaphysically true, they are morally and politically false.” 

The more cautious, historically anchored course Burke favored is also most compatible with political authority. Authority may chafe, to be sure, but it is something a society requires to make law, restrain violence and delinquency, and coordinate both individual and collective action. Conversely, the decay of authority leads either to anarchy or despotism (or both). 

But where does authority come from? 

From the “divine right of kings,” said the seventeenth century. From “the consent of the governed,” said the eighteenth century (and the nineteenth, and twentieth, and twenty-first). And these ideas have surely played their part in the overall maintenance of authority. Just on their own, though, or taken in the abstract, such propositions are vulnerable to debilitating objections. 

Thus, Burke stressed that, ultimately, political authority is not so much a product of rational deduction as something that “we possess as an inheritance from our forefathers.” For the most part, people accept a government not because they deduce its legitimacy from an abstract proposition (like “consent of the governed”), but rather because the government was already in place when they were born—their fathers and mothers and their fathers’ fathers and mothers’ mothers accepted it—and when they married, and when they raised their own children. Society and government amount to a partnership, but one “not only between those who are living, but between those who are living, those who are dead, and those who are to be born.” 

Burke described this inherited and customary basis of authority as “prescription,” meaning long and accepted usage, and he emphasized its necessity. “Prescription is the most solid of all titles,” he told Parliament, “not only to property, but … to government.” And this observation led to a warning: “If prescription be once shaken, no species of property is secure.” And no government. Burke’s Reflections were written early on before the revolution (“this strange chaos of levity and ferocity”) had reached its pathological culmination. Which, in retrospect, makes his warnings look all the more prescient. Within a few years, the uprising would spin out of control in its macabre, guillotine-dominated phase. And it eventually culminated not in Liberté, Égalité, Fraternité, but rather in the appointment of a dictator: Napoleon. In the two-plus centuries since Burke wrote, the wisdom of his Reflections has continued to guide conservative thinkers, who have perceived further confirmation in the tragic, sometimes horrific consequences of other attempts—Italian and German fascism, Russian and Chinese communism—to restructure a society or a government in accordance with abstract theoretical propositions. 

Conservative Originalism 

Now for originalism, or the position that basically (and in a variety of versions) holds that American courts should conscientiously enforce the provisions of the Constitution in accordance with those provisions’ original meanings. At least as a self-conscious movement, constitutional originalism began in the late 1970s and early 1980s, vigorously promoted by figures like Robert Bork and Edwin Meese, Ronald Reagan’s attorney general. Embattled from the outset, early originalism nonetheless had at least two features that rendered it powerfully attractive, especially to conservatively oriented people (like me). 

First, the idea that we should interpret a statement or text to mean what the speaker or author intended it to mean just has a commonsensical, almost self-evident quality. Originalist theorists often support the point with homespun examples. If you send me a text saying “Meet me at Taco Bell for lunch,” and if I know you meant the Taco Bell on Main Street, it only makes sense for me to interpret the text to mean what you meant to convey. True, I could read the words to mean the Taco Bell across town, but that would be stupid and perverse: if I go there I won’t find you.  Or suppose I do decide to buy my burrito at the other Taco Bell: you may suspect that I was actually trying to avoid you, that I deliberately misconstrued what you wrote so as to frustrate your friendly purposes. 

To be sure, with some texts—ancient texts, for example, like the Homeric epics or the plays of Euripides—we may ultimately interrogate the texts looking for things that the authors did not have in mind. Power relations, or gender roles, or religious presuppositions. And we may use a poem as a stimulus for reflecting on questions the poet wasn’t thinking about. But for the first step (namely, figuring out the text’s basic meaning) we look to what it meant as and when written. 

This basic point is sometimes put in terms of authority. If we think that George, say, is supposed to have authority to make our law, then we should interpret George’s edicts in accordance with what George intended or expected them to mean. It would make no sense to let George issue edicts but then to interpret them according to what someone else wants them to mean; that would be effectively to deprive George of the very authority we purported to give him. Substitute “We the People” for George, and the point still holds. 

This point is so compelling that hardly anyone really rejects it. Consider an example often invoked by originalists: in Article IV, Section 4, the Constitution authorizes the national government in some circumstances to protect states against “domestic Violence.” Both the historical and documentary context make it clear that this provision was referring to unlawful uprisings, like the then recent and fearsome Shays’s Rebellion. Uttered today, the same words—“domestic violence”—would more likely be associated with intrafamily altercations such as spousal abuse. But to read the constitutional provision as authorization for national regulation of family relations would be merely obtuse, and not even the most virulent anti-originalist is likely to advocate such a construction. 

A second powerful attraction of originalism, for conservatives anyway, was that the movement was inspired by opposition to a judicial campaign under the Warren and Burger Courts to use the Constitution as a pretext for imposing on the nation progressive measures that were unpopular enough to preclude enactment through the ordinary democratic processes.  Roe v. Wade is the classic instance, of course, but there were plenty more: Supreme Court decisions on school prayer (e.g., Engel v. Vitale), parochial school funding (e.g., Lemon v. Kurtzman), contraception (e.g., Eisenstadt v. Baird), and criminal procedures (e.g., Miranda v. Arizona), for example.  (Obergefell v. Hodges, the same-sex marriage decision, is a more recent and even more egregious example.)  Such decisions seemed like a blatant abuse of power by an arrogant and overreaching judiciary.Given these features and origins, originalism became indelibly associated in the public mind, and in the academy, with conservatives (like Bork and Meese and the newly founded Federalist Society), and with conservativism. Originalist theorists claimed, to be sure, that there was nothing inherently conservative in their constitutional method. And a handful of noted and openly progressive scholars—Michael Perry, for one, later Jack Balkin—claimed to embrace originalism and used originalist vocabulary and methodology to continue to advocate progressive results. But these progressive originalists have always been suspect within the originalist movement. How could they be bona fide originalists when, as everyone knew (and as pretty much everyone still knows) originalism is an intrinsically conservative project? 

It turns out, though, that in this respect, “everyone” is mistaken. 

The Radical Potential of Originalism 

Professor Merrill explained how originalism had the potential to be deeply disruptive with respect to constitutive traditions and practices. The theory “entails the potential for radical discontinuities in interpretation, and hence unequal treatment and unpredictability.” 

He offered as a portentous example the question(s) of the administrative and welfare state. Especially over the last century, as we all know, governments and especially the national government have greatly increased their role in the regulation and promotion of all manner of activities that were formerly left more to individuals, families, churches, and other associations. Both the expansion and the centralization of governmental power have always been profoundly controversial. Conservatives have generally been skeptical of the growth in government power, though hardly anyone takes a completely consistent hard line pro or con.  

Some of us might lament these developments; we might ardently wish that history had gone differently. And it is always possible that the trajectory of power accumulation might be reversed: conservatives (like me) can and do advocate such reversals. And yet conservatism has always tried to reside in the realm of reality, not of theory, fantasy, or wishful thinking: and the administrative state is by now and for now our reality. A great deal in our society, in our lives and families and businesses, is now predicated on and interwoven with this form of governance. And it has been for many decades. The product of countless debates and political battles and compromises, this is, for better or worse, our “inheritance from our forefathers,” to borrow a phrase from Burke. 

As it happens, though, governmental expansion and centralization have also been in serious tension with the design contemplated in the Constitution. To be sure, justices and scholars have attempted to rationalize such tensions away, but the rationalizations have often seemed sophistical. So if like me, and like many traditional conservatives, you are suspicious of the modern administrative state, a quick and simple solution might seem overwhelmingly tempting. Why shouldn’t an originalist Supreme Court just step in and declare the administrative state unconstitutional? 

This was the disruptive “radical discontinuit[y]” that Professor Merrill contemplated. If the administrative state is at odds with the constitutional design, originalism implied that someone might just “file a lawsuit and get the whole social welfare state declared unconstitutional.” 

However attractive such a prospect might seem to conservatives, though, it is hard to imagine a decision more thoroughly incompatible with the wisdom of Burke. Decades of development worked out by incessant and searching debate and negotiation and compromise—development that has come to constitute the America we have known and lived in and loved—would all be undone at one fell swoop. And it would be undone on the basis of … a theory. A theory of how, among the multitude of ways in which constitutional law has been formulated over the centuries of our national existence, the Constitution ought to be interpreted.  

The “Hypothetical Horrible” Realized? 

Law professors often test propositions with the aid of imaginative hypotheticals, sometimes with so-called “hypothetical horribles.” When Professor Merrill offered his hypothetical case in which someone “file(s) a lawsuit and get(s) the whole social welfare state declared unconstitutional,” that hypothetical probably seemed farfetched. But it is not farfetched today. Quite the contrary.  

Thus, in recent years, the Supreme Court has been undermining the foundations of the administrative state (sometimes, I need to say, in decisions with which I agree), but its most potentially radical decision occurred just last June in a case called Trump v. Slaughter. A bit of background: in the New Deal period, as the administrative state was expanding, Congress and the Supreme Court acted to prevent a massive transfer of power to the president by creating so-called “independent” agencies that would be in part subject to limits imposed by Congress. This strategy was admittedly a kind of inelegant compromise calculated to reconcile new governmental realities with the traditional constitutional commitment to “separation of powers,” or “checks and balances.” One feature of this compromise was a kind of qualified tenure for agency officials, such that the president could not move in and commandeer the agencies by simply ordering them to do something and then removing officials who failed to obey. 

In a major case called Humphrey’s Executor, the Supreme Court unanimously upheld such a constraint on the president’s removal power, arguing that the agency (the Federal Trade Commission, the same agency involved in Slaughter) was not purely executive but rather “quasi-legislative, quasi-judicial.” This was a squishy description, to be sure, and one that fairly invited the ridicule that Justice Scalia later heaped upon it in a case called Morrison v. Olson. And yet the description was not exactly inaccurate: the fact is that, legal fictions aside, many agencies do perform what are de facto legislative and judicial functions. Moreover, if all squishy distinctions were eliminated, the law would become a gaunt shadow of its former substantial self. Realistically, Humphrey’s Executor’s less than theoretically pleasing approach was part of the compromise designed to keep the new administrative state within the spirit if not the exact letter of constitutional separation of powers. And the compromise basically held up for almost a century. 

Then, in Slaughter, a six-justice majority repudiated Humphrey’s Executor and decreed in effect that the president must be free to remove, at will, FTC officials and, by clear implication, officials from the host of formerly “independent” agencies. In doing so, the Court effectively undid a longstanding constitutional compromise and greatly enhanced the president’s already capacious powers. To be clear: the decision does nothing to curb the vast powers of the administrative state. It merely operates to concentrate those powers under the control of one person, namely, the president. 

Justice Neil Gorsuch trenchantly asked: “Would Congress have delegated so much power, including legislative and judicial power, to independent agencies had it known that the President would come to control them?”  Probably not. But however unfortunate this transfer of powers might be as a practical matter, say the decision’s defenders, the Court really had no choice: it was simply carrying out the command of the Constitution, which establishes a “unitary executive” in which all executive power must be under presidential control. So, where and how does the Constitution convey this momentous command? Basically in two phrases, say defenders of the “unitary executive” theory. Article II begins by providing that “[t]he executive power shall be vested in a President of the United States of America.” And Section 3 of that article says that the president “shall take Care that the Laws be faithfully executed.” 

That’s it, you ask? Just those two sentences? Well, pretty much, at least as far as the text is concerned. But seriously: are those two sentences a sufficiently clear and unequivocal endorsement of unrestricted presidential removal power to justify repudiating an understanding that has stood for almost a century? To be sure, both the Court and the dissenting justices and critics also contend that the “unitary executive” theory is supported, or, conversely, contradicted, by extratextual history. Critics contend that concentrating so much power in the president seems radically at odds with the Constitution’s overall commitment to limited and separated powers. But supporters argue tenaciously that, properly understood, this is what the words just mean, even if legislators, judges, and scholars throughout American history have often failed to perceive that meaning. And so, once again, a conscientious Court really had no choice, did it? 

And thus, on the basis of a theory and two innocuous-looking sentences, a hard-won, painfully worked out political compromise and a decades-old pattern of governance are repudiated. At one fell swoop. 

Originalism or Conservatism? 

But strike that observation: it goes too far. In fact, a decision like Slaughter does not mean the end of the administrative state. Nor does it restore the Constitution’s own three-branch separation of powers scheme. On the contrary, though now subject to greater presidential control, the administrative agencies will continue with their messy, power-blending mixture of legislating (described in the administrative context as “rule-making”), adjudicating, and executing. This means, if the president is now in control of the agencies, that the president himself will be exercising not only executive but also legislative and judicial powers. Hardly what the Constitution contemplated.  

As Justice Gorsuch cogently explained in his concurring opinion: “Today, independent agencies do not just exercise executive law-enforcement powers. Congress has also delegated to them vast legislative and judicial powers, effectively allowing these agencies to make laws and decide disputes under them. And, after today’s decision, the President can effectively exercise all those powers too.” Does that sound like anything even approximating the Constitution’s scheme for separation of powers? 

Slaughter does nothing to correct that sort of massive, wholesale departure from classical separation of powers. In this respect, it seems to be the kind of decision that, as a wise man once said, “strains at a gnat and swallows a camel.” 

From a hardline originalist perspective, therefore, the problem with Slaughter is that it does not go nearly far enough. What the Constitution truly requires is to end or at least drastically curtail the administrative state. And indeed, Justice Gorsuch gestured in this direction. 

But it seems unlikely that even a Court committed to originalism will attempt anything that radical. Dismantling the administrative state that has governed us for decades would amount almost to a revolution. A revolution achieved by judicial fiat. And it might invite some modern-day Burke to write “Reflections on the (Originalist) Revolution in America,” acerbically making points similar to those Burke made with respect to the French Revolution. 

At a time when political wisdom seems in desperately short supply, and when repeated surveys show respect for governmental authority to be at an all-time low, is this the point at which the revolutionary imposition of a controversial theory is the prudent course?   

The prospect of a judicial dismantling of the administrative state starkly poses the question for us.  Which do we want to be? Originalists? Or conservatives? 

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