Until recently, the conservatives who supported Donald Trump agreed on one main point in their conservative case for Trump: Trump's appointment of federal judges recommended by the Federalist Society would promote the conservative legal movement by appointing only judges who adhere to the original meaning of the Constitution and the clear textual meaning of the laws. That 28% of those actively serving on the federal bench today--including three of the nine Supreme Court Justices--were appointed by Trump must therefore be a great success for conservative jurisprudence. But now Trumpian conservatives cannot agree about this.
The problem began in June of last year when Neil Gorsuch wrote the majority opinion (six justices) in Bostock v. Clayton County, holding that the Civil Rights Act of 1964 forbids employment discrimination against homosexuals and transgender people, because Title VII of that Act makes it unlawful "to discriminate against any individual . . . because of . . . sex." Conservatives were shocked that Trump's first Supreme Court appointee, who filled the vacancy created by Antonin Scalia's death, would write such an opinion. They were particularly shocked that Gorsuch justified his opinion as grounded in a strict Scalian textualist interpretation of the law: according to the literal meaning of the text of the law, discriminating against individuals because they are homosexual or transgender discriminates against them because of their sex, which therefore violates Title VII.
Some religious conservatives (like Senator Josh Hawley) declared that this showed that their bargain with Trump and the conservative legal movement had failed, because a textualist originalism was supporting liberal policies. (I have written previously about Gorsuch's opinion in Bostock.)
Some conservatives (like Adrian Vermeule) say that this shows the failure of originalist jurisprudence to support conservative morality. Instead of originalism, Vermeule argues, conservatives should embrace a "common good constitutionalism" or "substantive moral constitutionalism." "This approach should take as its starting point substantive moral principles that conduce to the common good," Vermeule explains, "principles that officials (including, but by no means limited to, judges) should read into the majestic generalities and ambiguities of the written Constitution." This would mean a recognition of the fact that those who have social authority--including judges--must "legislate morality."
Vermeule acknowledges that in making this argument he is following the lead of Ronald Dworkin, who was well known for claiming that we need "moral readings of the Constitution"--that interpreting the Constitution is an exercise in moral philosophizing. But while common-good constitutionalism is "methodologically Dworkinian," Vermeule observes, it "advocates a very different set of substantive moral commitments and priorities from Dworkin's, which were of a conventionally left-liberal bent." But some conservatives will object: if we are going to allow conservative judges to develop conservative "moral readings of the Constitution," how can conservatives deny the freedom of liberal judges to read the Constitution as teaching a liberal morality?
A BETTER ORIGINALISM?
This objection has led some conservatives to contend that while we should agree with Dworkin in finding moral philosophy in the Constitution, we should insist that this be the original moral philosophy of the Founders who framed and ratified the Constitution, with the assumption that this original moral philosophy of the Founders was a conservative moral philosophy. This seems to be the position of Hadley Arkes, Josh Hammer, Matthew Peterson, and Garrett Snedeker in their essay "A Better Originalism," who argue for a "common good originalism."
They recognize that textualist originalism can correctly interpret the literal meaning of the legal texts, as Gorsuch did in Bostock. But this mistakenly ignores the moral meaning of the laws by assuming a narrow positivist jurisprudence, according to which the validity of the law as whatever the lawmaker says it is has nothing to do with its morality.
Against such positivist originalism, they affirm four principles of an originalism based on moral and natural law:
1. We hold that moral truth is inseparable from legal interpretation.
2. We hold that the Anglo-American legal order is inherently oriented toward human flourishing, justice, and the common good.
3. We reject literalist legal interpretation and hold to the common sense jurisprudence of the founders.
4. We believe in a jurisprudence that is, in the truest and most profound sense of the term, conservative, in preserving the moral ground of a classic jurisprudence.
They believe that these principles are implicitly affirmed in the Declaration of Independence and in the Preamble of the Constitution. The Declaration appealed to "the Laws of Nature and of Nature's God." That provided a moral ground for a shared commitment to natural rights secured by government, so that the "just powers" of government are directed to the "Safety and Happiness" of the people, for whom law is "wholesome and necessary for the public good."
The Preamble enumerated the substantive ends of the Constitution: "a more perfect Union," "Justice," "domestic Tranquility," "the common defence," "the general Welfare," and "the Blessings of Liberty." Consequently, a constitutional originalist must interpret the clauses of the Constitution as directed to these substantive moral ends as "the telos, or purpose, for which those clauses have been formed."
They recognize the most common conservative objection to their position, mentioned above, that affirming the moral meaning of the Constitution will allow liberal judges to find liberal morality in the Constitution. They respond: "If our friends claim that judges on the Left will take this as a new license for moral reasoning untethered, our answer is: why do we suppose that we cannot tell the difference between arguments that are plausible or specious? The answer to the Left is to show why their reasoning is false; it is not to end all moral reasoning and disarm conservative judges."
So like Vermeule, their constitutional jurisprudence is "methodologically Dworkinian," in looking for a moral reading of the Constitution, but they are confident that correct moral reasoning will persuasively support a conservative morality for the Constitution and refute the left-liberal morality that Dworkin claimed to find in the Constitution.
Arkes and his colleagues seem to be speaking for the Claremont Institute in their critique of positivist originalism. After all, their arguments sound a lot like those made by Harry Jaffa against Rehnquist, Bork, and Scalia.
But that creates a problem for the Claremont Institute's support for Trump. If Trump's judicial appointees belong to the positivist jurisprudence championed by the Progressives (such as Oliver Wendell Holmes), doesn't this mean that Trump has promoted the overturning of the Founders' Constitution? Doesn't this contradict the Claremont Institute's claim that it supports the natural rights/natural law tradition of the Founding against the positivism of the Progressives? (That Scalia's positivist jurisprudence was rooted in the progressive legal tradition of Holmes has been well argued by George Anastaplo.)
DEFENDING POSITIVIST ORIGINALISM
The best conservative critique of this conservative moral originalism has been written by John Grove for the Liberty Fund's Law & Liberty website. Josh Hammer--one of the coauthors of "A Better Originalism"--has identified Grove's essay as "the most thorough response" to their argument.
Grove makes two general claims. First, the text of the Constitution enumerates and organizes the powers of government, but it "neither answers nor empowers judges to answer the great moral questions of public life for us." Second, Burkean conservatives should know that it would be dangerous to allow judges to act as moral arbiters, because to allow powerful people to impose on society their personal conceptions of morality would lead to tyranny.
While Arkes and his colleagues assert that "the Constitution's preamble enumerates substantive ends," Grove quotes from the Constitutional Convention's Committee of Detail's Report the statement that the Preamble was "not for the purpose of designating the ends of government and human polities." Moreover, Grove notes that this was no recorded debate on the language of the Preamble--"a silence that would be shocking if any of the delegates thought the passage infused a great moral telos into the document." Hammer admits: "Grove scores some clever points in his favor, especially with respect to the Constitutional Convention's Committee on Style, which drafted the Preamble without leaving behind any notes or recorded debate."
Nevertheless, Hammer insists that "Grove outright misses the mark," when he says that the Constitution does not "authorize the importation by judges of moral content . . . on which the Constitution is not indeterminate but utterly silent." Hammer says that this begs the question at issue, which is "whether the Constitution is actually silent on the matter if it is properly understood and construed." But isn't this a remarkably weak argument--to say that if the Constitution "is properly understood and construed," we can read moral language into the Constitution, although the Constitution never actually uses moral language?
THE ORIGINAL MEANING OF THE CONSTITUTIONAL AMENDMENTS
It is surprising that while both sides in this debate refer to the Constitution as ratified in 1789, both sides are silent about the Constitution of 1791 (with the ratification of the first ten amendments) and the Constitution of 1870 (with the ratification of the13th, 14th, and 15th amendments). And it's in those amendments that one sees the moral language of rights, including those rights "retained by the people" prior to government.
The Constitution of 1789 uses the word "right" only once, in enumerating the power of Congress to secure "for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" (Art. I, section 8, clause 8). In the amended Constitution, the word "right" appears 12 times in the amendments.
To show that Alexander Hamilton recognized the "limited purpose" of the Constitution that did not require moral principles, Grove quotes Hamilton's observation that the long bills of rights often included in the state constitutions "would sound much better in a treatise of ethics than in a constitution of government." This remark is from Federalist number 84, in which Hamilton defended the Constitution of 1789 against the objection that it had no bill of rights. But Grove says nothing about the decision of James Madison and other founders in 1789 to amend the Constitution by adding a bill of rights. Did this make the Constitution sound like a "treatise of ethics"?
In his speech to the House of Representatives explaining his proposed amendments, on June 8, 1789, James Madison argued that although the Constitution had been ratified without a bill of rights, it would be good to satisfy that great body of the people that wanted such a bill of rights in the Constitution. "We ought not to disregard their inclination, but, on principles of amity and moderation, conform to their wishes, and expressly declare the great rights of mankind secured under this constitution." He indicated that the proposed list of rights included both "natural rights" such as freedom of speech and "positive rights" such as trial by jury.
"If they are incorporated into the constitution," he explained, "independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights."
He thought that such a bill of rights would guide judges in protecting the rights of the minority from being violated by a powerful majority:
"In a Government modified like this of the United States, the great danger lies rather in the abuse of the community than in the legislative body. The prescriptions in favor of liberty ought to be levelled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power. But this is not found in either the executive or legislative departments of Government, but in the body of the people, operating by the majority against the minority."
That this list of rights included natural rights that existed prior to government was indicated by the 9th Amendment: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
That this idea of rights "retained by the people" pointed to natural rights in the state of nature before the establishment of government was clear in Roger Sherman's draft of the Bill of Rights: "The people have certain natural rights which are retained by them when they enter into Society."
So what would Grove say about the 9th Amendment? Since he quotes approvingly from Robert Bork, I wonder whether he would agree with what Bork said in his 1987 testimony before the Senate Judiciary Committee that was considering his nomination to the Supreme Court by President Reagan:
"I do not think you can use the Ninth Amendment unless you know something of what it means. For example, if you had an amendment that says 'Congress shall make no' and then there is an inkblot, and you cannot read the rest of it, and that is the only copy you have, I do not think the court can make up what might be under the inkblot."
Would Grove agree that the 9th Amendment is a meaningless inkblot that should be ignored?
I also wonder how Grove would read Section 1 of the 14th Amendment: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
This language was originally drafted by Congressman John Bingham from Ohio. In his final speech in support of the 14th Amendment in May of 1866, he said that its purpose was to provide a check against the "many instances of State injustice and oppression" and "to protect by national law the privileges or immunities of all the citizens of the Republic and the inborn rights of every person within its jurisdiction whenever the same shall be abridged or denied by the unconstitutional acts of any State."
This is the moral language of Lockean classical liberalism--affirming natural human rights that must be secured by any just government. That neither Arkes and his colleagues nor Grove acknowledge this language in the Constitution's amendments suggests their agreement in their rejection of this Lockean constitutional morality.
GORSUCH'S ORIGINALISM IN BOSTOCK
Returning to Gorsuch's opinion in the Bostock case, which prompted this whole debate over conservative originalist jurisprudence, I have to wonder whether a Scalian originalist like Grove would agree with Gorsuch's reasoning. Gorsuch's credentials as a Scalian textualist are unimpeachable. And in this case, Gorsuch relies on the strict meaning of the legal text in Title VII of the Civil Rights Act of 1964 to conclude that discrimination against homosexuals or transgender people is illegal because it is discrimination against them because of their sex. Would Grove say that this is good positivist originalism, because it adheres to the literal meaning of the law as written by the lawmakers, without invoking Gorsuch's personal beliefs in any "moral truth" or "natural law" behind or above the legal text?
Perhaps Grove would agree with Justice Alito that Gorsuch's textualism is fraudulent. In his dissenting opinion in the Bostock decision, Alito warns that Gorsuch's opinion is legislation disguised as a judicial opinion interpreting a statute, and therefore it is not really anything like Scalia's textualism.
"The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court's opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated--the theory that courts should 'update' old statutes so that they better reflect the current values of society."
Gorsuch emphatically asserts that he is following Scalia's textualist approach in grounding his legal interpretation in the text of the law and nothing else. "When the express terms of a statute give us one answer and extratextual considerations suggest another, it's no contest. Only the written word is the law, and all persons are entitled to its benefit."
Remarkably, Justice Kavanaugh concedes that "as a very literal matter," Justice Gorsuch's interpretation of the legal text is correct! But Kavanaugh argues that as a sound principle of judicial interpretation, the "ordinary meaning" of a legal phrase is to be preferred over the "literal" meaning. So while Gorsuch is right that the literal meaning of discrimination because of sex includes discrimination against homosexuals and transgender people, the ordinary meaning accepted by reasonable people--legislators, judges, and citizens--is that prohibiting discrimination because of sex means equal treatment for men and women, which does not require prohibiting discrimination based on sexual orientation or gender identity. Kavanaugh says that Scalia would not have accepted Gorsuch's literal interpretation of "because of sex." After all, Scalia himself once said that "the good textualist is not a literalist."
And yet Gorsuch relies heavily on a crucial interpretation of Title VII by Scalia in his opinion, writing for a unanimous court, in Oncale v. Sundowner Offshore Services (1998). Joseph Oncale alleged that he was forced to quit his job working on an oil platform in the Gulf of Mexica because he had been sexually harassed by other men in the crew. Oncale said that he would not have been harassed by these men if he had been a female, and therefore he had been discriminated against because of his sex, which was prohibited by the language of Title VII.
When the Congress wrote and approved Title VII in 1964, probably no one anticipated that the language of the text would prohibit the sexual harassment of men by other men in the workplace. This was not part of Congress's original intent. But still, Scalia concluded, if the literal interpretation of Title VII protected men from such harassment, then this was part of the original meaning of the statute, even if that meaning was not understood in 1964.
The same literal reading of "because of sex" applied here, Gorsuch observes, also applies to employment discrimination based on the homosexuality or transgender status of employees.
This is what Walter Olson at the Cato Institute calls a "surprise plain meaning" reading of the law. Sometimes a strict textualist reading of the law can turn up a meaning that surprises the jurisprudential textualists, a meaning that might even contradict the conservative policy preferences of the textualists.
Isn't that good for textualism, because it refutes the claim of textualism's critics that textualists use the supposed objectivity of textualism to read their own conservative ideology into the text of the law? If textualism reveals in an unbiased way what the law really says, then one should expect that what is found in the law will sometimes surprise or even disappoint the conservative textualists.
That is the case with Gorsuch's reading of Title VII as expanding LGBT rights, against the desire of religious conservatives that those rights should be narrowed. Similarly, as I have argued in a previous post, one can make a good textualist argument for concluding that the original meaning of the 14th Amendment supports same-sex marriage, which would provide a textualist justification for Justice Kennedy's opinion in Obergefell. That argument has been well made by William Eskridge and Steven Calabresi in their amici curiae brief in the Obergefell case. Eskridge and Andrew Koppelman made a similar textualist argument supporting Gorsuch's opinion in Bostock in their amici curiae brief in that case.
Now a positivist originalist like Grove might object that a decision like Bostock allows the Supreme Court to usurp the lawmaking powers of Congress. But we should keep in mind that the Congress has the power to overturn or revise the Supreme Court's interpretation of the law in Bostock by legislating a congressional interpretation of Title VII. Congress has all the constitutional powers to be the supreme branch of the national government, even if it often refuses to exercise those powers.