Is Liberal Constitutionalism "More Honest" Than Justice Scalia?

Slate's blog on legal issues.
May 12 2008 10:32 PM

Is Liberal Constitutionalism "More Honest" Than Justice Scalia?

Yes , says Jack, but how can one compare the honesty of a person and a theory? It's like saying that the theory of evolution is more honest than William Paley. Jack might mean that Scalia doesn't apply his theory of originalism honestly, or he might mean that no one can apply the theory of originalism honestly, or perhaps that any workable theory of originalism is dishonest. It's hard to tell. Correlatively, it's not clear whether Jack thinks that any Supreme Court justice who adopted liberal constitutionalism would be honest, or that there is something intrinsically honest about liberal constitutionalism. Maybe Jack means that a Supreme Court justice who honestly applied liberal constitutionalism would be more honest than a Scalia who dishonestly applies originalism, but that would be true by definition. Jack concludes that the principles of liberal constitutionalism aren't even liberal, which makes one wonder whether it can be so honest after all. Sloganeering is hard work.

Jack does have a point about originalism: Whatever claims have been made about it on theoretical grounds, it doesn't appear to constrain judges from striking down laws that offend their ideological commitments. The problem not mentioned by Jack is that this same complaint was a longstanding and powerful objection to the Warren Court justices' living constitutionalism. No one has been able to offer a persuasive defense of these precedents; they are now regarded as simply liberal policymaking—sometimes wise policymaking, but impossible to defend as constitutional decisionmaking. That's why Democrats can't counter Scalia by advancing a constitutional philosophy; they can only invoke a disparate group of judicial decisions that are politically popular and argue that these decisions are vulnerable to conservative retrenchment. The reason that the "evolving" and "living" constitution slogans have become a joke is that everyone thinks of them as sly references to judicial policymaking that has resulted in some of the most ideologically divisive cases in the court's history. Jack's liberal constitutionalism can't escape this problem; indeed, it is probably worse than originalism on this score, as he wrings all the determinacy out of the founding materials, leaving only some dried-out husks of principles that are too abstract to have any force.

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Republicans are coasting on the now decades-old reaction to the Warren Court's excesses: "Judicial activism" is still associated with that court's elitist disregard for the political choices of the people, acting through their legislatures, and this charge is still red meat for many conservatives. Scalia does well not because he is charming but because originalism has not yet suffered the fate of liberal constitutional theory and become synonymous with judicial policymaking. Democrats should work on forging an association in the public mind between judicial activism and the rulings of the conservative majority on the court; for the lack of a positive program—for the lack of an appealing product that can compete with whatever Scalia is selling—they can only rue their judicial forbears and take comfort in the thought that originalism's time will come as well. It isn't the lack of a theory that causes Supreme Court justices to decide cases in conformity with their political preferences; it is life tenure.

Eric Posner, a professor at the University of Chicago Law School, is a co-author of The Executive Unbound: After the Madisonian Republic and Climate Change Justice. Follow him on Twitter.