Half Measures

An earlier version of this article was framed as giving advice to those on the right agitating for particular political outcomes. Because I have decided that this topic is of general interest, I have removed language that suggested this framing.

Those who study or teach the law do not frequently attempt to explain the debates in our field to outsiders. Perhaps this is because explaining a legal debate to a layperson involves defining terms, and we have seen our friends’ and loved ones’ eyes glaze over when we start too many times. However, there is one current debate around constitutional interpretation, happening largely among legal scholars on the right, that is of general interest. The general audience should be aware of what follows, but note that none of this should be new to you if you are a law student, lawyer etc.  

Lurking in the background of every debate about constitutional interpretation is what is referred to as the dead hand problem — what do we do when we, as a political community or nation, find ourselves committed to particular governing structures (like having a Congress) and substantive policies (like being limited in our ability to regulate speech), only some of which we would agree to now, had we been given the choice? This is sometimes framed as a problem about democracy, especially in a country like the U.S. without parliamentary sovereignty and with a Constitution that is very difficult to amend: we believe in democratic decision-making except for in what is covered by this document. However, even if you don’t believe in or care about democracy, it’s still a problem. “We the People” are not our sovereign. These capital-P People do not have the mandate of heaven, they do not represent the lowercase-p people of the nation, and we cannot revolt against The People should we decide we are done with them. So, most legal scholars believe that interpretive methods should allow us to at least somewhat adjust how and to what the Constitution binds us.

The story of this debate, told in first-year law school classes across the country, is that from the New Deal through the 70s, nearly every judge and legal academic believed that judges were free to interpret the Constitution in context of what “we all agree” was the decent and right answer. Championed by left organizations like the ACLU, this interpretive school holds that the values encoded in the Constitution, in light of which the document is read, shift meaning overtime and that we can update according to these shifts. Encoding a value, like “liberty” or “equality,” might mean that the authors consciously intended its placement, but it could also mean that the value was “in the air” at the time of drafting regardless of whether the writers specifically had it in mind. In their view, if e.g. “equality” is encoded, we are not required to stick with exactly what the writers thought equality meant but can instead use what we mean by it. If the text does not get us the answer we want, we can still argue that the Constitution “as a whole,” read in light of our understanding of these encoded values, does.

In the 80s, a school of thought committed to the text itself, as it would have been originally understood, began to gain popularity. Originalists and textualists still hold that the text should be read in light of encoded values, but that the writers’ understanding of those values is “locked in.” So we still interpret the text as a whole in light of “liberty,” but their version of it, not ours. This idea was especially popular with conservatives, and is championed by FedSoc, because it seemed to be offering a way to stop time, at least on a certain set of issues. It seemed possible to hold a certain point stable with the “shield” of originalism. The right did have some victories from its support of this school of thought, like the few gun control cases where state and local laws were struck for violating the Second Amendment, but, although most decisions SCOTUS hands down now employ textual arguments, the number of victories attained by FedSoc and the right has been small compared to the level of power and influence ascribed to them.

Not everyone on the right is interested in the “freeze in place” strategy, in any case or have at least noticed how ineffective attempts to stop Cthulhu’s leftward swim have been. So, Adrian Vermeule, in his infamous “Beyond Originalism,” articulated what many others were thinking: we need to interpret like the left does. We need a sword. Instead of encoding liberty or equality, however, take the Constitution to be encoding a deep concern for “authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to ‘legislate morality’—indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality.” His piece has excellent arguments demonstrating that concern for the common good is just as plausible a basic value of the document as liberty is. (In a follow-up, he responded to the hyperventilating of the left and the winning-allergic right by saying that there was an accidental search-and-replace at some point of his uses of “equality and freedom” with “common good,” whoops!)

It is important to see how interpretation can help us out with the dead hand problem. When we find ourselves bound to something we wish we were not, we can reinterpret the passage so that we are instead bound to something we want. Originalists and textualists are frequently motivated by a concern about giving this power to judges. Whether out of respect for democracy, or distaste for their fellow lawyers, they do not want a “dictatorship of nine.” Some NRx types probably like this idea, at least if the nine were the right people, but “rule by judges is good” is an extremely unpopular opinion among judges, at least when it comes to what they’re willing to say out loud. Some (originalists and non-originalists) take a departmentalist position, that SCOTUS’s interpretation should not be the final word. In this view, the President or Congress should be able to say to SCOTUS: “I don’t care what you think this means, I’m going to act as though it means something else.” This is another genre of solution to the dead hand problem – allow the people who “directly politically represent us” to have the power of interpretation.

One commenter, Josh Hammer, responded to Vermeule by proposing a middle ground position which he calls “common-good originalism.” His proposal is sophisticated and very much in line with Vermeule’s thought. In general, however, we can think of middle ground interpretation schools as saying that our understanding of an encoded value, or what outcome we think desirable, can be invoked as a tie-breaker when the text is ambiguous or when it produces an answer directly opposed to the encoded value. Vermeule, in turn, responded to Hammer’s piece by saying that, while the view is a step in the right direction and its appearance is probably a good sign for the emerging right-wing discourse on constitutional interpretation, it is an unstable half-measure.

Of course, departmentalism, common-good constitutionalism and its liberal equivalent are all half-measures, since we could just shred the thing. Our ambivalence about having a Constitution does not seem to overcome our fears about not having one. Perhaps half-measures are the only ones we can stomach.