By CALVIN TERBEEK
Review of A Republic, If You Can Keep It, by Neil Gorsuch, and Originalism's Promise: A Natural Law Account of the American Constitution, by Lee J. Strang
New York: Crown Forum, 2019
New York: Cambridge University Press, 2019
Neil Gorsuch is an ideological entrepreneur. His new book—pointedly not “intended for academics” (8)—is a folksy paean to constitutional conservatism. Gorsuch’s primary audience for his evangelization is the conservative media ecosystem and the engaged conservative citizen who consumes its wares. It is no coincidence the justice gave an exclusive preview of the book to The Federalist, a pro-Trump conservative web magazine. Gorsuch wants to fill the role of conservative scholar-judge for the knowledge structure that movement conservatives have impressively built up for decades. This book is part of his bid to succeed Antonin Scalia, but with the late justice’s hard edges sanded down.
Likewise, University of Toledo law professor Lee Strang’s book is the product of—and is also primarily aimed at—the conservative knowledge structure. Strang’s core audience is fellow conservative academic lawyers who subscribe (or are sympathetic) to originalism and their liberal interlocutors in the legal academy. The production of Strang’s book was supported by conservative institutional sites, including Georgetown Law’s Center for the Constitution (xi). The Center is run by Randy Barnett who conceived the first constitutional challenge to the Affordable Care Act. Reinforcing the ideological feedback loop: Barnett’s colleague, Larry Solum, with whom he runs an “Originalism Boot Camp” for conservative and libertarian law students, testified on behalf of Gorsuch at the nominee’s confirmation hearing. At Gorusch’s hearing Solum delivered a defense of originalism, and here, Solum blurbs the book.
Gorsuch’s central aim is to translate originalism—defined by the justice as reliance on “text and history and how the document was understood at the time of ratification” (25)—and its attendant conservative legal policy goals for a lay audience. Strang’s book serves as a compendium of the conservative and libertarian scholarship which Gorsuch, in turn, name-checks and popularizes in his book. Strang endorses this as the conservative legal movement’s “intellectual division of labor” (95). Put differently, Strang calls for conservative and libertarian legal academics to produce more law review articles (and books) for the conservative justices to cite in their opinions (and books) in order to legitimate them with ostensibly neutral academic expertise. Thus these books, instantiating the “intellectual division of labor,” provide a window into how ideas are disseminated and institutionalized by the conservative legal movement and the Republican Party.
I.
A Republic If You Can Keep It is largely an assemblage of Gorsuch’s opinions, prior writings, and transcripts of speeches he’s given with an emphasis on those from his time as a justice. Synthetically, the substance of Gorsuch’s translation of constitutional conservatism follows what has now become the stock narrative of originalists in the legal academy. This fun house mirror history asserts that originalism has always been how the justices interpreted the Constitution. To be sure, there were missteps by the ostensibly historically originalist justices. Gorsuch repeatedly points to Dred Scott and Korematsu as warnings of what happens when the justices stray from originalism (115, 125-6, 134, 189). But these are regrettable mistakes. The real villains are the Progressives, New Deal legal liberals, and the Warren Court. All three helped drive the constitutional train off the tracks (105). Today’s originalists, like Gorsuch, are simply following the trail blazed by their movement conservative forebears (Robert Bork, Raoul Berger, and Scalia) in restoring the Constitution (47-58, 60, 126, 188).
Gorsuch’s message to fellow conservatives is plain: originalist justices are simply following the law in contrast to legal liberals who advocate for living constitutionalism, repeatedly personified by Ronald Dworkin and long-time conservative bête noire Laurence Tribe (49, 50, 54). These theorists advocate for politicized judging in contrast with substantively neutral originalism (10, 22, 60, 106, 114-5, 144). Disputing the criticism that originalism and movement conservatism are politically synonymous, the justice responds, “Rubbish” (114).
The issue area that most concerns Gorsuch is the administrative state (59-103). This is unsurprising. As Don McGahn, President Trump’s former White House counsel, said in 2017: “There is a coherent plan here where actually the judicial selection and the deregulatory effort are really the flip side of the same coin.” For Gorsuch, ALJs (administrative law judges) are suspect constitutional actors—they are “judges” in scare quotes (62, 65). Gorsuch also worries at length about the harm these actors can do to our system of separation of powers because they purportedly “make law” outside of the process set forth in Constitution. Gorsuch conceptualizes ALJs as unelected political actors appointed at the direction of a bureaucratic “political boss” to adjudicate disputes that are the federal courts’ responsibility (67). Departing from his insistent use of “constitutional republic” throughout the book, it is here that Gorsuch raises concerns of “democratic accountability” (73). Returning to another erstwhile movement conservative theme, he paints the administrative state as perilous potential tyranny: “Churchill once said that the world is divided into people who own their governments and governments who own their people, and it is vital we never cross that line” (64).
Given his constitutional concerns, it is also unsurprising that Gorsuch is an avid consumer of conservative legal scholarship and, more broadly, the intellectualized conservative content their knowledge structure produces. Cited approvingly by Gorsuch in his book are National Review’s Rich Brookhiser (oddly labeled a historian (32)); a libertarian think-tanker (Gorsuch discloses neither his ideological nor his institutional affiliation to the reader (62)); Friedrich Hayek (45); the Heritage Foundation’s politicized policy papers (242); and the Wall Street Journal (68, 242). Gorsuch is both an entrepreneur and a consumer of the conservative knowledge structure and its outputs.
As a polemic in a colloquial patois on behalf of originalism and the GOP’s legal policy goal of deregulation, the book succeeds. Indeed, it has already received positive coverage from National Review, the conservative Washington Examiner, and Fox News. But if the book is meant as a reassurance that originalism is a politically neutral and objective method of constitutional interpretation, it is more cause for concern than comfort. Though the message is as old as movement conservatism itself, Gorsuch is (re)instructing his conservative audience that it is they, via originalism, who are the true defenders of the Constitution, and it is they who must defend “the Republic” against constitutionally illegitimate legal liberalism. In short, the book reveals a justice filled with intellectual certitude and ideological rigidity. But this is precisely why he was nominated and confirmed.
II.
Strang’s book, promising a natural law account of originalism, aims to provide theoretical substance to Gorsuch’s popular argument. However, the book is better understood as speaking to the academy’s network of conservative and libertarian constitutional thinkers. The account of natural law appears to have been woven into the last fifth of the manuscript, the bulk of which is based on the author’s law review articles dating back to 2005. One goal of the book is to reassert the control Georgetown’s Center for the Constitution once had over the fractious intra-originalist debate in the legal academy (42). Externally—that is, outside the legal academy—it is aimed at beginning a broader originalist conversation with theorists, many of whom are Straussians or Straussian-adjacent, in academic departments and their concomitant centers and foundations.
Strang, in fleshed out form, tell the same story as Gorsuch regarding the “history of originalism.” Relying almost exclusively on law review articles (and books) by fellow conservative originalists, he begins the narrative by asserting “both the goals and tools of constitutional interpretation in the early Republic were originalist” (15). He interprets the lack of originalist thinking during this era as evidence of originalism’s dominance as a background assumption: the Founding generation took “an unselfconscious originalist approach” when considering the Constitution (14, 16, 29). Like Gorsuch, Strang points to Dred Scott as a “nonoriginalist” (289) historical mistake. In keeping with the latest turn in originalist revisionism, Strang’s constitutional villain is the Progressives who began veering the train off the originalist tracks (17-9). Originalism’s Promise also repeats the narrative of displacement—a purported originalist consensus eclipsed during the Progressive and New Deal eras, made complete by the left-liberal Warren Court.
Still, like Gorsuch, Strang settles on a hopeful, restorationist end to the narrative. For him, the story is the slow return of originalism to its rightful place via the work of Bork, Berger, and the originalists in the legal academy working with the conservative justices on the Court (23-42). In his zeal to claim the Constitution for originalism, Strang declares that American public opinion supports originalism. Citing to an article in the Federalist Society’s official journal (Harvard Journal of Law & Public Policy), Strang claims “the average American” is originalist in orientation (128). This is inaccurate: while support for originalism is strong among Republican identifiers, it lacks majority support among the public as a whole. Indeed, for Strang, originalism is an inevitability. The “Constitution’s original meaning” is akin to “a religious tradition’s sacred text that anchors the tradition and that has the power to pull the tradition back to its own best self” (201).
Strang further maintains, like Gorsuch, that “absent following the original meaning” the justices are simply imposing their (liberal) political will on the American people (128). But the reader cannot proceed past the second footnote in the first paragraph before Strang asserts: “The Constitution directly decides the substance of many important issues” (1, emphasis added). To support his contention, he cites a Roberts Court campaign finance decision on the scope of the free speech clause and a Rehnquist Court commerce clause case (1). Both were decided by 5-4 votes along ideological lines.
The rest of the book follows suit. Again, citing almost exclusively the law review articles (and books) of a baker’s dozen of fellow conservative originalists in the legal academy, Strang deems certain Supreme Court cases “originalist” and others as falling short. As to economic and government power cases, liberal New Deal era cases are not originalist (20-1, 103), but Lochner-era and Rehnquist Court cases are (1, 101, 153). Justice Scalia’s opinion in Heller finding an individual right to bear arms in the Second Amendment is consonant with originalism (83, 190). Justice Kennedy, on the other hand, made an originalist argument in the same-sex marriage case (Obergefell v. Hodges (2015)), but it was “an implausible one” (178).
Finally, every constitutional theorist must engage with Brown v. Board of Education (1954) and Roe v. Wade (1973). Strang saves Brown for originalism and from living constitutionalism. His argument is that even if Chief Justice Warren’s opinion “deviated from the original meaning of the Constitution, its deviation was relatively minor” (135). As for Roe it “is unjust.” This decision has led to “the growth of a multimillion-dollar industry that profits from the fears of women who are pregnant in unfortunate circumstances, targeting of minorities communities, and a coarsening culture that increasingly devalues human life” (138-39).
III.
Outside of a few scholars, there is little originalist argumentation that is not intertwined—and intentionally so—with movement conservatism and the Republican Party. It is a salient example of a successful idea that has been institutionalized by a “party-in-government”: in the Supreme Court, Republican Departments of Justice, Solicitors General, presidents, party platforms, governing elites in the Senate, and the House Freedom Caucus (and, before that, the Tea Party Caucus). Put differently, originalism is important for scholars to better understand because it is a politically powerful idea. Thus, how scholars—particularly historians, legal academics, and political scientists—should engage originalism going forward is an important conversation.
For constitutional academic lawyers, it is increasingly unclear how engaging in the internalist debates with most originalists is intellectual labor well spent. Originalists on the Court and in the academy are more interested in their political project than serious intellectual exchange. Historians such as Jonathan Gienapp, Mary Sarah Bilder, and Saul Cornell—like Jack Rakove and William Treanor before them—have done critical work in keeping originalist history honest. Strang ignores this scholarship but for a stray cite, and Gorsuch does even less. Yet, it is precisely because the conservative knowledge structure churns out tendentious history to support its legal policy goals, that there is a pressing need for more informed historical critique. Indeed, historians who focus on any period from the Founding to the emerging History of the Present might engage more fully with originalism. Finally, while judicial politics scholars have begun to work on the politics of originalism, more work remains to be done by political scientists across the methodological spectrum.
While some continue to dismiss originalism as an absurd intellectual and theoretical enterprise, that does little to change the reality of a politically potent idea that is deeply institutionalized in GOP and conservative institutional sites. It is an idea whose consequences now shape both law and politics.
Posted on 9 October 2019
CALVIN TERBEEK is a PhD candidate in political science at the University of Chicago.
