One way to understand the American Revolution is that it was Englishmen fighting Englishmen for the rights of Englishmen. The failure of the British monarch and the British parliament to give the North American English colonists a say in whether they were to be taxed and how, whether their rights to trial by jury were to be honored, whether their goods and homes would be subjected to arbitrary searches and seizures, and whether their very lives might be put in peril without the safeguards guaranteed by the English common law were the reasons for that rebellion.
It was the boast of Americans then, and so it remained until recently, that as it was enunciated by John Adams in the Massachusetts Constitution of 1780—ours was a government “of laws, not men.” The meaning of this phrase was simply that our republic was based on the idea that no one was above the law, and that only the sovereign people could dictate what that law was to be.
Underlying that notion was the great emerging principle of the science of politics, that liberty was best secured by separating the functions of government, so that the legislature legislated, the executive carried out the Constitution and laws as written, and the judiciary expounded on the true original meaning of those documents.
To state those simple principles is to suggest how far from the original understanding we have come. The dominant jurisprudential view in American law schools, for example, for two generations has been that we have a “living Constitution” and that it is the task of the judiciary to alter the meaning of that fundamental legal charter in order to meet the changing needs of the times. Perhaps it wasn’t always so, but it has certainly been suspected from the time, in the early 20th century, that Finley Peter Dunne had his fictional wise Irish bartender, Mr. Dooley, remarked that “The Supreme Court follows the election returns.” In any event, it is obvious that something has changed.
The shameful situation, understood by anyone who cared to review what the Supreme Court had done from 1937 onward in permitting the federal government to exercise a regulatory authority over intrastate as well as interstate commerce, or to examine what the Warren Court had done interpreting the 14th Amendment ahistorically to give the federal courts jurisdiction over public education, redistricting of state legislatures, abortion, or marriage (all areas allocated by the original understanding of the Constitution to the state and local governments) was that we had undemocratically become subject to government by judiciary.
Instead of self-government, instead of the Republic as it had been originally conceived, this nation, with a Supreme Court committed to a “living constitution,” had become subject to nine elite black-robed lawyers sitting in Washington, D.C. One might have expected, given that our law schools are supposed to be bastions for the preservation of the rule of law, that there would be howls of protest from the legal academy over what amounted to the Court’s betrayal of the Constitution. And, to be fair, there was at least some fairly muted protest from the bench and the law professoriate.
Much more common, however, was the attempt to justify what the New Deal and Warren Courts had done by discovering “principles” within the Constitution which could be teased out by creative judges and jurists, who were able to argue that so long as these deeper Constitutional values, such as “fairness” and “equality” were being followed it didn’t matter that there had been a fundamental change in the manner the Constitution’s structure was being interpreted, and thus there had been a fundamental departure from the original understanding of that document.
While this may have pacified some potential legal academic critics, the Supreme Court’s naked exercise of law-making continued to roil our politics, and, indeed, there were abortive efforts to impeach Earl Warren, and at least one of the Warren court’s most creative judges, William O. Douglas. By 1968, it had become expected that Republican candidates for president would run on platforms of appointing judges and justices who would “interpret” rather than “make” the law, and Ronald Reagan’s attorney general, Edwin Meese, a former law professor, initiated a crusade, of sorts, to return constitutional law to its original understanding.
Shortly before that, in 1977, Raoul Berger’s book protesting “government by judiciary,” had been published, and, soon, what was to become the most important vehicle for promoting this traditional view of Constitutional law, the Federalist Society for Law and Public Policy, an organization of lawyers, law professors, and law students, was founded. So powerful had the Federalist Society become, in fact, that when Donald Trump ran for president, he openly collaborated with the Society (and the Heritage Foundation) in formulating a list of potential Supreme Court justices, one of which, Neil Gorsuch, he appointed soon after his election.
Nevertheless, because controversial Warren and Burger Court decisions such as Brown v. Board of Education (1954) and Roe v. Wade (1973) were favored by progressives, and since progressives dominated the law schools, there continued to be countless articles and books written by law professors defending the creative and progressive jurisprudence epitomized by those decisions and others.
At least one law professor, Georgetown’s Louis Michael Seidman was bold enough to concur with the view articulated by a justice for whom he had clerked, Thurgood Marshall, that the Constitution itself was outmoded, and the quest for a return to the implementation of the original understanding was hopelessly misguided. Something like that was also the view of one of the most intellectually exciting movements in the law schools during the 1970’s and early 1980’s, the Conference on Critical Legal Studies (CLS), whose members argued that law, even Constitutional law, was simply politics, and we would do well to acknowledge that.
If law was merely politics, however, it would hardly be the noble profession venerated for centuries, and CLS’s influence, while powerful in some quarters, never achieved academic dominance. More to the point, politics is not free from arbitrariness, and raw political power surely seems like something different from a government of laws, not men (or women).
Accordingly, some of the most brilliant writing in the law schools for the past decade or so, heavily influenced by the Federalist Society (which is, after all, the antithesis of CLS), has sought to defend the traditional view of the Constitution and jurisprudence. According to that view, most clearly articulated in our time by Justices Antonin Scalia, Clarence Thomas, and Neil Gorsuch, the Constitution should be understood and interpreted in the manner that it would have been by those who framed and ratified the document. If the meaning of that document is to be changed, it should be by the Article V Amendment process, and not by justices.
Lee Strang’s book is a worthy contribution to the current renaissance in works promoting the original understanding, and is itself a highly original take on the problem. Before Strang, the most persuasive defense of original understanding jurisprudence (or “originalism,” as it is usually called) was based on the structural features of the Constitution, such as the separation of powers and federalism (as maintained, for example, by the Federalist Society), or its character as approved by supermajorities of the American people.
Strang attempts the much more challenging task of justifying original understanding by recourse to the philosophical tenets of Aristotle and Aquinas, and, indeed, claims to be putting forth a defense of originalism through an appeal to natural law.
This is not the easiest argument to expound or maintain, as there is little to no evidence that the framers thought of themselves as Aristotelians or Thomist scholars. They were practical politicians, concerned with the abuse of political power, and the Constitutional structure they put in place was designed to save us from ourselves, and to check and balance power’s exercise to prevent corruption and tyranny.
Strang, however, in the tradition of Aristotle, believes that the Constitution ought to be about the promotion of “human flourishing,” and, in a complex presentation drawing not only on the work of Aquinas, but on virtually every scholar writing on Constitutional law in the past few years, Strang explains how originalism is the best means to secure that flourishing for Americans.
The book is a provocative and worthy contribution to the literature, although the high level at which it is pitched makes it most clearly of interest to other professors rather than to the general public, as suggested by its publication by one of the best scholarly presses.
Most intriguing in Strang’s presentation is his grappling with the problem of “non-originalist” precedent, the question of whether the current Supreme Court should follow decisions such as Brown v Board of Education and Roe v. Wade which depart from the original understanding, and are clear exercises in judicial legislation rather than interpretation.
Brown, the decision that outlawed racial segregation in public education, and the decision that has come to stand as the quintessential example of the judicial branch championing of our core value of equality, is praised and endorsed by Strang, presumably as a worthy means towards human flourishing. On similar grounds, Strang condemns slavery and, even though it was part of the original Constitution, he seems to suggest it never should have been, as it is contrary to natural law, at least as understood by some natural lawyers. In a move that takes great courage in our time, however, Strang condemns Roe v. Wade, the decision that overturned state prohibitions against abortion, since Strang apparently sensibly believes that natural law ought to be understood to offer protection even to human life in the womb.
This is a tricky business, obviously, and not all will find Strang’s arguments on these points persuasive, particularly his choices of what non-originalist precedent to preserve and what to discard. This should be done, he maintains, when the non-originalist precedent in question is “deeply entrenched, widely respected, and just,” but how the proof of such qualities can be conclusively determined by jurists is murky and, indeed, to suggest that what is “just,” ought to be the test is to favor equity over law, and to encourage discretion rather than certainty.
Nevertheless, Strang is onto something. Even if the framers weren’t Thomists, one can certainly find a common thread in the thought of framers such as Alexander Hamilton, George Washington, and Samuel Chase, for example, that one couldn’t have order without law, or law without morality, or morality without religion, and this seems at least within striking distance of the position that Strang takes.
Even if one believes that the purpose of the Constitution was more highly political than philosophical, and even if one hesitates to endorse the practically Maslovian concept of “human flourishing,” or “self-actualization” as some used to describe it, Strang deserves praise for seeking to present the case that there is an American “common good” that the Constitution exists to promote. In our current era of poisonously divided politics and culture, to seek means of uniting us is certainly laudable. Moreover, Strang’s approach seems correctly to understand that where the Constitution is ambiguous, it should not be the job of the courts, but rather that of the popular branches—the legislative and the executive—to construe its meaning. (p. 90)
If his fellow scholars take Strang seriously (and they should), he might indeed move us further away from government by judiciary, and back toward the rule of law and the Constitution’s original understanding. This may be more a matter of common sense than Thomistic or Aristotelian philosophy, but in our time common sense is in short supply, and Strang’s project is a worthy one.