Recently a relatively small group of supposed conservative law professors and lawyers who are also supposed advocates of originalism as regards constitutional interpretation, signed a statement of political purity incredibly suggesting that Donald Trump would be no better, even worse for the Constitution than Hillary Clinton. To say the least their statement is bereft of any sensibility — legal, historical or political. It includes the likes of George Will. For many, enough said. Of note is the fact that the web page they set up to promulgate their feces thesis does not have a comment section. What are they afraid of?
Jesse Merriam is an assistant professor at Loyola University. He holds an M.A. and Ph.D. from Johns Hopkins University and a J.D. from The George Washington University Law School. He responded to the statement in we think rather measured terms. We set forth the introduction and a few more excerpts but invite you to read his full response. We hold forth, to some extent critiquing the critiquer, whose point to this writer is more inside baseball instead of dealing with what is essentially a political document by the signatories. The only likely way to ameliorate Merriam’s own concerns is with a Trump victory, the here and now.
Delusional Originalists Against Trump
More than 50 originalist legal scholars and practitioners recently earned praise from the Left in signing a statement supporting Hillary Clinton over Donald Trump. These “originalists” insist they “are under no illusions” about Clinton’s hostility to their preferred mode of constitutional interpretation. Nevertheless,contra my diagnosis, they are confident originalism remains alive and well, and certainly sturdy enough to withstand her presidency. Indeed, they proclaim, “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 will therefore survive her presidency.
“Originalism has faced setbacks before,” they solemnly declare, but “it has recovered.”
These are, by and large, brilliant legal scholars, but the fault in their reasoning lies not in their understanding of law but their assessment of political realities. These scholars see a polity with a strong commitment to originalism and thus imagine a world in which they can revive that commitment after Clinton’s tenure, whether that is in 2020 or 2024. To present that as a serious picture of American law and politics reveals the extent to which these scholars are not only under an illusion (a false perception) but a delusion (a belief in a fantasy world that is directly contravened by all available data).
To illustrate just how delusional their position is, let us unpack their statement.
Delusion No. 1: “Our country’s commitment to the Constitution is not . . . fragile.”
For a group that has devoted considerable ink to bemoaning the excesses of the Obama Administration—from its abuses of executive discretion in ignoring clear statutory commands, its machinations in passing the Affordable Care Act, and its efforts to use federal funding to transform community demographics and public school potty usage—these Never Trump scholars now have an impressively optimistic view of the nation’s constitutional commitments. . . .
Delusion No. 2: Our constitutional commitment cannot “be undone by a single administration or a single court.”
This is simply ahistorical. Whether “the switch in time” of 1937 was due to the reelection of Franklin D. Roosevelt in 1936, or more particularly to FDR’s court-packing plan, it is clear that this FDR-led switch in judicial philosophy transformed the scope of federal power under the Commerce Clause. The same is true for Lyndon Johnson and the Warren Court: Constitutional law simply does not look the same after the passage of a series of Great Society statutes that essentially “ate the Constitution.”
The unavoidable fact is that by the end of Clinton’s term the nation will have so dramatically changed that it will not be possible to return to a conservative court, let alone to create a majority-originalist one—something we were not close to having even after the seven justices appointed by Reagan, Bush I, and Bush II. The Never Trump scholars simply do not explain how, given our political realities, they imagine this originalism revolution occurring. . . .
What is particularly delusional—and strikingly inconsistent—about this claim is the notion that our country’s commitment to originalism is sufficiently strong to withstand a Clinton presidency (even though her victory would guarantee that at least three-quarters of the federal judiciary would have been appointed by Democratic presidents and the Supreme Court would likely not feature a single originalist by the end of her term), but not sufficiently strong to withstand Donald Trump (even though he has taken the unprecedented step of seeking to ingratiate himself with these very scholars by providing an exhaustive list of potential Supreme Court justices and by consistently explaining his constitutional vision in originalist terms).
The concerns about executive overreach under Trump are certainly warranted, but it is inconceivable that Trump would be able to reach any further than Clinton, when she would face nearly no resistance against her progressive-corporatist-globalist agenda, whereas Trump would have to overcome the power of the media, entertainment, and academic industries so firm
Delusion No. 3: “Originalism has faced setbacks before [and] it has recovered.”
Not only is originalism dying on the bench, it is barely alive in academia—which is amazing when you consider it has a greater chance of flourishing in an environment with lower expectations for practical relevance. And where originalism is taking its last gasps in the academy, it is in a form that is nearly indistinguishable from the activism of the Left. Indeed, there are now so many variations on originalism that it’s possible to encounter liberal originalists, multicultural originalists, and so on. …
Much harder to find are the original originalists. What we have instead are college student libertarian “originalists,” pushing the nation into Gomorrah with their preoccupation with the overreach of federal narcotics laws while ignoring the federal destruction of local civic institutions.
Many of the anti-Trump originalists have supported progressive causes such as the judicial creation of same-sex marriage, as well as aggressive foreign intervention, open borders,and corporate rights—oftentimes ignoring the supposedly sacred original meaning of the Constitution in the process. . . .
This has earned “attaboys” from the Left (and I use “boy” descriptively; only a few women joined the statement), with many liberals praising these “good conservatives” for falling in line in condemning Trump. While law school faculties remain over 95 percent left-wing, the few non-progressive academics permitted entry to this elite caste are overwhelmingly the safe, moderate libertarians. These select few are bestowed the exotic status of being “the crazy conservative on campus,” satisfying the progressive quota of knowing at least one non-progressive, while the socially conservative intelligentsia are ostracized and kept in academic ghettos.
So long as these token libertarians do not challenge progressive orthodoxy, they are lavished with praise, allowing academic and political elites to ignore the nation’s growing societal fractures, . . .
So the “originalists against Trump” statement is about much more than originalism as a constitutional philosophy or Trump as a presidential candidate. It is about a movement that has fallen out of step with the purpose of law and what makes actual human beings conservative. . . .
The legal conservative movement would be well advised to listen to what actually agitates voters, rather than projecting their own grievances onto them. For the legal conservative movement to save itself, and to save us all from another Donald Trump, we must get away from shadow-boxing each other in an empty arena and turn our attention toward the people who actually matter.
All Rise — the Court of Veritaspac.com speaks — concurring in part and demurring in part — Merriam justly castigates the neverTrump originalists but the very last statement is disappointing. He does a lot of his own shadow boxing. We do not see enough clarity in his last paragraph as regards who is better for the Constitution. He tells people the signatories are delusional politically so we get the probable underlying message (Trump is better) but given that those he critiques castigate Trump why not say in conclusion, ~~as bad as Trump might be, he is much better for Constitutional originalism. It is undeniable to most conservatives / originalists. It is silly to dance around it.
He might have added a note that none of them were on Trump’s Supreme Court list, (have any of those named by Trump demurred?). Further, a list of originalists supporting Trump would be much bigger and better known I believe.
Now turning back to the statement of the assorted saps and sophists Merriam critiques we see this gem, referring to Trump: Notwithstanding those he has already named, we do not trust him to do so.
So we are to respect conjecture, subjectivity, a feeling from these legal scholars on something they have no particular expertise in — knowledge of Donald Trump — and accept their bonafides as “originalists? We don’t feel confident in their authenticity, because as Merriam informs us, their are many shades of originalism and because of that, their individual complexions may be barely passing.
The ever so erudite fifty go on to lecture: 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.
Incredibly, are they suggesting that Hillary would be more respectful of the Constitution and would be more constrained? A Hillary judiciary, when not legislating as an oligarchy, would be rubber-stamping her use of Obama precedents and encouraging her eagerness to carry them further. We also know for example that Clinton loves Roe v Wade/Doe v Bolton and hates Citizens United and Heller. What assuredly do they think Hillary will look for in a judge with her regard for those matters?
They are willing to allow Hillary to assuredly stack the Court because they don’t believe Trump — well what do they believe about Hillary? From an authentic originalist standpoint how much more anti-originalist can you get than Hillary? And are not such originalist appointments, which Trump has promised fifteen times a week to make, calling it “everything,”. . . is that not a check and balance that he alone promises? Trumps appointees would be there to constrain him while Hillary promises no check on her authority.
The case is hereby remanded to the body politic. R Mall – source DLH
