Why Michael Gerson Misunderstands Originalism

Michael Gerson is rightfully one of the most respected commentators in Washington. His writings, whether one agrees with them or not, can always be expected to be thought-provoking, insightful, and fair. And unlike many Washington scriveners, Gerson is unafraid to criticize his own ideological allies -- and not just point out the shortcomings of those on the other side of the political spectrum. The depth and civility of our nation's political discourse, I would venture to say, would be vastly improved if there were more Michael Gersons on both sides of the political debate.

Gerson's June 23, 2010 op-ed in the Washington Post criticizing Senator Franken's speech at the American Constitution Society's convention, however, misses the mark. In that speech, Franken attacked the current jurisprudence of the Roberts' Court as conservative judicial activism that protects the interests of corporations and wealthy elites over the interests of individual Americans. Gerson critiques Franken for being overly rhetorical and for fundamentally misunderstanding the efforts of the Roberts' Court to refrain from, rather than to engage in, judicial activism. To be sure, as Gerson suggests, Franken's choice of language may have been more in line with a stump speech than with a law review article. But Franken's central observation that the Roberts' Court has been activist in favor of conservative results is unassailable.

For decades, conservatives criticized liberal judges for engaging in so-called judicial activism and, in so doing, claimed superiority in their approach to judicial decision-making. Liberals, they contended, failed to properly defer to the decisions of the politically accountable branches and too often imposed their own political judgments on the political process. Conservatives, on the other hand, understood that deference to the political branches was central to the judicial role.

Things have changed. In a recent article (also in the Washington Post) Senator Jeff Sessions (R Ala) wrote that the appropriate constitutional test for a judicial nominee is actually whether she will strike down laws enacted by the political branches, not whether she will defer. Of course, Senator Sessions narrowed the types of laws he thought should be routinely struck down to those affecting corporate speech, gun rights, and private property interests. But the idea that the judiciary's striking down popularly enacted laws is no longer to be considered 'activism' is now apparently a central tenet of the Republican Party. To be sure, I doubt that Senator Sessions would suggest that a judge's striking down laws discriminating against gays or limiting the speech rights of unpopular groups would also be emblematic of judicial virtue, but the fact that conservatives are picking and choosing conservative interests for favorable judicial treatment is exactly Senator Franken's point. The charge of judicial activism is not one that can be levied only at the left.

More importantly, the new conservative judicial tack supporting non-deference is far less defensible than the old-line liberal approach. So-called liberal jurisprudence suggests that courts should be particularly vigilant when the interests of vulnerable political minorities are at stake precisely because they are political minorities and, therefore, may not get a fair shake in the political process. The view of Senator Sessions and other conservative judicial activists, in contrast, is that the opposite should be true. Whatever one thinks of campaign finance laws, gun regulation, or zoning measures, there is very little case to be made that corporations, the gun lobby, and property owners are politically vulnerable entities.

In any event, having abandoned deference to the politically accountable branches as the touchstone of judicial restraint, the conservatives now lay claim to restraint on grounds that they purportedly adhere to binding constitutional principles of originalism while liberals, in contrast, are guided only by untethered principles of justice.

Franken attacked this assertion in his ACS speech as well, characterizing the conservatives' purported reliance on originalism as little more than a talking point, and it is this particular characterization to which Gerson takes great exception. To Gerson, originalism is not a talking point but "a developed, consistent theory of judicial interpretation." And maybe it is for some academics who are willing to take the theory as far as it will go -- including to results that for most Americans would be politically unacceptable. But the fact is that Franken is correct and, for most conservatives, reliance on originalism has been little more than a talking point. Not too many conservatives argue that various federal drug laws are unconstitutional, for example, and many contend that federal power has not been expanded enough in the areas of tort reform and property takings. In reality, most conservatives rely on originalist principles only selectively and seldom when it gets in the way of results that they want to achieve. Whatever else the Citizens United case may stand for, the notion that corporations have unlimited rights to spend money to influence elections is not originalist. The Court's rejection of federal affirmative action, whatever else one thinks of the policy, is not originalist. The Court's efforts to place curbs on the ability of local communities to protect the environment or to allow public access to beaches are not originalist. The list goes on.

Michael Gerson believes that constitutional law should not be a vehicle to allow unelected judges to impose their political will on the citizenry. I could not agree more. But the answer to judicial overreaching is not adherence to a narrow form of originalism that would suggest the Constitution is incompatible with the demands of modern society. The framers themselves had more foresight than that form of originalism would allow which is why they created a doctrine with enduring principles rather than literal instructions. And whatever the merits of originalism, the answer to judicial overreaching is not in the conservative jurisprudence of the Roberts' Court. The Constitution is a document that first and foremost defends equality and liberty- it is not one that focuses on protecting power and privilege.