[originalistsagainsttrump.wordpress.com]
A long list of conservative lawyers, mostly law professors, but many practitioners as well, recently published a signed manifesto explaining why they, proponents of the constitutional interpretive theory of originalism, will not be voting for Donald Trump this election season. These people are mostly intellectuals and will have little if any influence on the voting preference of persons in the typical demographics of Trump nation—white working class and frustrated, as well as, presumably the alt-right. More likely than not people who would take note, or even be aware of their stand are either people like me, too liberal to even say the words “vote Trump”, conservatives who likely already have made up their minds not to vote for Trump, or maybe the Mike Pence types—mainstream conservatives who are supporting Trump while pinching their noses in hopes that he can be handled if he becomes president. While the Originalists may influence some of these latter folks, it is hard for me to grasp how the publication of “Originalists against Trump” could have any real impact.
So why do it? My best guess—Principle.
Originalists are proponents of the view that the Constitution should be interpreted according to the framers’ intent, or (if you are a Scalia originalist) how the document was originally understood. Whether one’s favor is in the sparse notes of the Philadelphia Convention in 1787, or more generally prefer how the document was viewed when it was ratified by the people, which was the view of the late Antonin Scalia, if you are an originalist, you have had debates over how to apply that original intent or understanding to modern problems. It is by nature a conservative philosophy of interpretation. And inasmuch as the country was founded by conservatives who were admired by the eighteenth century conservative British political theorist Edmund Burke, and has essentially a conservative history, heck if you are an originalist, you have nothing to lose. But the rest of us do if we view the document as one based on classical liberal theory capable of application beyond the narrow confines of 18th century post-colonial America. Perhaps Justice William Brennan said it best when he described originalism in a lecture he delivered at Georgetown University in 1985:
[upholding] constitutional claims only if they were within the specific contemplation of the Framers in effect establish a presumption of resolving textual ambiguities against the claims of constitutional right.
Brennan went on to say:
[t]his is a choice no less political than any other; it expresses antipathy to claims of the minority to rights against the majority. Those who would restrict claims of right to the values of 1789 …turn a blind eye to social progress and eschew adaptation of overarching principles to changes of social circumstance.
Originalists claim that original meaning is the closest thing to pure unadulterated interpretation--the original bargain struck when the Constitution went into effect. As such it is devoid of the personal political preference of less conservative interpreters of the document. Fair enough, and inasmuch as this is not a blog about the virtues or non-virtues of originalism, I will just leave it right here, for now.
Some would argue, I presume, that these Originalists, as conservatives, are taking a risk in the sense that if their opposition to the Trump candidacy takes hold, or they are otherwise influential as part of an uprising among conservatives against the Trump candidacy, Trump will lose and Clinton will win. From the standpoint of my perception that the professional lives of these individuals are taken up by the Constitution, the Supreme Court, and the decisions of that body, this is a risk. This is because the current court is aging at key points. Anthony Kennedy, Ruth Bader Ginsburg, and Stephen Breyer may chose to retire soon, leaving key vacancies. A conservative president would replace Breyer and Ginsburg with conservatives and Kennedy, a swing voter, with a more reliable conservative and change the Court’s philosophy for at least a generation. With the help of a Democratic Senate (which at this writing is a possibility) a liberal president would replace Kennedy with a reliable liberal on a variety of issues. So, as their manifesto acknowledges, a Clinton presidency will appoint anyone but originalists to the Supreme Court. A “Clinton Court” will very likely be like the “Roosevelt Court” in reference to the fact that the last Roosevelt appointee to the Court (William O. Douglas) remained on the Court until the Ford administration, a period of 36 years. And the Roosevelt appointees were instrumental in changing constitutional jurisprudence in ways that are still vital today.
With so much at stake from their conservative viewpoint, why take this position? Originalists against Trump offer their own constitutional rationale for opposing a Trump presidency. And it is rooted in principle, and not in the ideological makeup of the Court. From their manifesto:
• The President must take care that the laws be faithfully executed; he admires dictators as above the law.
• The President must serve as Commander in Chief, enforcing rules for the government and regulation of the land and naval forces; he praises armed repression and makes light of the laws of war.
• The President must hold a public trust on behalf of all Americans; he courts those who would deny to others the equal protection of the laws.
• The President must preserve, protect, and defend the Constitution; he has treated the legal system as a tool for arbitrary and discriminatory ends, especially against those who criticize him or his policies.
The Originalists have chosen fitness for presidential leadership as the lead arguments against a Trump presidency knowing full well that the likely outcome is a generation of Court decisions that do not reflect the interpretive method of Originalism. Some conservatives have expressed the hope that the Senate will remain Republican to serve as a barrier to the appointment of liberals to the Court. But all this really guarantees is the appointment of Merrick Garland types, moderates with slight conservative tendencies. Certainly not the conservative leaning individuals that Trump has indicated that he will appoint.
To Trump’s promise to appoint conservatives to the Court, the Originalists say that they do not believe him:
We also understand the argument that Trump will nominate qualified judicial candidates who will themselves be committed to the Constitution and the rule of law. Notwithstanding those he has already named, we do not trust him to do so.
But even that swipe at the Republican candidate is laced with additional opprobrium:
More importantly, we do not trust him to respect constitutional limits in the rest of his conduct in office, of which judicial nominations are only one part.
I get angry when I read dissents by the late Antonin Scalia, who was a godfather of sorts to the Originalists signing on to this manifesto. I get angry when I read articles or briefs by some of the signers of the manifesto as well. But it is a professional anger based on my sincere belief that Originalism is just a façade to justify incorporating conservative values that Originalists already have into the Constitution, claiming that such conservative outcomes were predetermined by the document. So when I say that the framers were conservative, I mean it in the sense that their world view was limited by the values, of the time—the racism of slavery, the patriarchy, the mercantilist economies, the rugged individualism of an agrarian nation—none of which exist today (I know that is a broad statement, and I can defend it, but perhaps that should be the subject of another blog). But the broad principles of liberty embodied in that Constitution apply today more universally than anticipated at the time of its drafting. Originalists do not have a satisfying answer to how one takes these values as limited to the meaning of the time and applies them to the diverse society of our present time. Nonetheless, in a real sense, they are putting it all on the line—including the influence legal scholars and lawyers will generally have in an administration close to their ideological preference—out of fear of the nature of government and society in a Donald Trump lead America.
Liberal constitutional scholars should take note and consider the same situation on different sides—a moderate, flawed conservative running for president against liberal of questionable integrity, reckless ideas, and a willingness to place his/her interests above that of the nation,. Knowing the fate of the ideology of the Court would be lost for a generation if the moderately conservative, though flawed candidate won, would liberals write a manifesto and take the stand taken by these Originalists?
The Originalists end their manifesto with the following:
We are under no illusions about the choices posed by this election—or about whether Hillary Clinton, were she elected, would be any friend to originalism. Yet our country’s commitment to its Constitution is not so fragile that it can be undone by a single administration or a single court. Originalism has faced setbacks before; it has recovered. Whoever wins in November, it will do so again.
And finally:
Originalism is a commitment to the Constitution, not to any one political party. And not every person who professes support for originalism is therefore prepared to be President. We happen to see Trump as uniquely unsuited to the office, and we will not be voting for him.
If they are influential, or if their preferred outcome—that Donald Trump not be elected—comes to pass, and assuming a cooperative Senate (an unstated assumption in the manifesto) well, that’s pretty much it for originalism for a generation and pretty much it for their influence of the Originalists on legal policy and judicial appointments for a good while.
It’s a principled and gutsy call.
