They want an originalism that knows what time it is.
My friend, mentor, and former professor Jed Rubenfeld published an article last week in The Free Press titled “Why MAGA is Furious with Amy Coney Barrett.” In addition to discussing the particulars of the Right’s recent spat with Justice Barrett due to her vote in Department of State v. AIDS Vaccine Advocacy Coalition, Rubenfeld explores “a civil war now being waged within legal conservatism, a war that will determine its future.” He contends that, like his progressive students a decade ago, many young conservatives are beginning to “turn against the constitution.”
With the utmost respect, Professor Rubenfeld is wrong. The rejection of our constitutional order remains a fringe view among right-wing law students and young lawyers. The most potent challenge to actually-practiced legal conservatism comes not from “right wing anti-constitutionalism”—it comes from originalism itself. But ours is not the same critique of originalism as Harvard Law School professor Adrian Vermeule, who has been something of a bogeyman for legal liberals and FedSoc types. Yet for all the wailing and gnashing of teeth from the FedSoc establishment, it’s not clear Vermeule has much sway among young lawyers on the Right.
Despite recent warnings from David French and Sarah Isgur on the Advisory Opinions podcast, the conservative legal movement has been nearly unanimous in its condemnation of Vermeule’s legal theories. His “common good constitutionalism,” which justifies an even more unaccountable federal bureaucracy than we already have, is the stuff of nightmares. We have done our best to stamp out the embers of common good constitutionalism.
Nearly all young legal conservatives—even those of us on FedSoc’s right flank—remain committed to originalism. Simply consider the enduring popularity of Justices Clarence Thomas and Samuel Alito. I seldom, if ever, hear critiques of either justice from my peers. Like Ruth Bader Ginsburg, Justice Thomas has even become the stuff of memes. Likewise, the most full-throated originalists on the federal appellate bench remain revered by even the most hard-edged young conservative lawyers.
But that is not to say we are satisfied with the current state of legal conservatism as practiced in the judiciary and the academy. We are deeply disappointed by much of what has been done under originalism’s (and textualism’s) name.
Most young lawyers on the Right want an originalism that is unabashed in its defense of our Founding regime. We want an originalism that is committed to both the process and the substance of our Constitution. And we want an originalism that doesn’t feel compelled to justify itself by its ability to reach leftist results.
Look at recent Supreme Court opinions that have been most disappointing to the Right. None have been critiqued primarily for their excessive fidelity to originalism and textualism—but rather for their departures from them.
In Bostock v. Clayton County, two Republican appointees joined with the Court’s four liberals to graft the 2010’s sexual revolution onto the 1960’s civil rights revolution. Justice Alito’s dissent lambasted the majority for a false textualism—as he put it, the majority opinion was a “pirate ship” flying under a “textualist flag.” His much-celebrated (in my circles) critique chided the majority for departing from honest textualism, not because they used that approach. Or take the religious liberty case Fulton County v. City of Philadelphia, in which three conservative justices wrote or joined opinions devoid of any originalist justifications. A generation of conservative Court-watchers was left flabbergasted.
Similarly, the Right has blasted the Court for its reticence to rein in federal district court judges who are issuing universal injunctions despite undeniable originalist evidence that such injunctions are repugnant to the Constitution. And the Court’s reticence is of a piece with its consistent unwillingness to hear challenges to leftist Warren Court cases, despite originalists fulminating against them for decades. This deprives us of the chance to overrule these dangerous precedents. In light of the Court’s excessive caution, it is unsurprising that they are allowing lower courts to stall President Trump’s deportation orders, notwithstanding compelling originalist evidence that deportation is part of the president’s core executive power.
Put simply, the Court has been something less than bold in its originalism. And that’s why the young Right is disappointed. The “civil war” Rubenfeld speaks of isn’t between originalism and common good constitutionalism—it’s between originalists who recognize our advanced state of constitutional rot and those who don’t.
The republic is sick. The nearly unchecked growth of the administrative state, the ceaseless importation of immigrants, and the venal hoarding of wealth all point to how late the hour is for our Founders’ vision. Young conservatives recognize this, which is why we have grown disappointed with a flabby originalism that pulls its punches.
Perhaps the other great divide in this “civil war” stems from why originalists are originalists. Most among the older generation of originalists are committed to originalism out of a love for procedural neutrality in its own right. But most young conservatives are originalists for its substance.
The Constitution is a profoundly conservative document. Our fidelity to it comes not from its procedural legitimacy, but from our love for its principles. A restoration of our constitutional regime may be our last hope of building a more conservative America. We are originalists because the Founders gave us the best regime—the ultimate expression of our Anglo-American legal and political tradition—and we’d like to restore it.
This divide is stark and has great practical effect. Those who adhere to originalism out of a misguided love of process and liberal neutrality are less willing to aggressively upend the progressive order that has strangled our institutions. They are more willing to preserve the status quo or proceed with excess caution. They often adhere to what a friend calls “Broadway Originalism”: the idea that our Founders would have been reticent to overturn left-wing precedent. Lawyers in this camp are likelier to take a dim view of President Trump’s break-glass-in-case-of-emergency approach to repairing our constitutional order. But an originalist who acknowledges the lateness of the hour and reveres the Constitution’s substantive values must proceed boldly.
Contra Rubenfeld, the “civil war” among legal conservatives is not about whether to vindicate the Constitution, but about how. When we critique so-called originalist judges or academics, it is not for their excessive originalism, but for their excessive caution. We demand an originalism that is unapologetically originalist.
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