In January of 1788, the Anti-Federalist with the nom de
plume of Brutus was mightily troubled with the proposed
Constitution that had come out of Philadelphia. His particular
vexation was over the federal judiciary. To the New York State
Ratifying Convention, he wrote these words:
Those who are to be vested with the judicial power are to be
placed in a situation altogether unprecedented in a free country.
They ought to be rendered totally independent, both of the people
and of the legislature.... Because they are in such an unchecked
position they will naturally aggrandize power to themselves and to
the central government. In their decisions, they will not confine
themselves to any fixed or established rules. This power will
enable them to mold the government into almost any shape they
please.
The words of the faction that lost the battle of the
Constitution sound prophetic to us today. At the time, however, the
writers of The Federalist thought the concerns over the
judiciary overwrought. In answer to Brutus, Alexander Hamilton, as
Publius, wrote in his famous Federalist 78 (emphasizing the
principles of governance in capitals), "[T]he judiciary, from the
nature of its functions, will always be the least dangerous to the
political rights of the Constitution." In the Constitution's
tripartite division of powers, Hamilton ascribed "FORCE" to the
executive, "WILL" to the legislature, and "JUDGMENT" to the
judiciary. The judiciary, he confidently declared, would exercise
judgment, not will.
Did Hamilton truly believe that men in robes would act
differently from men in frock coats? Was not Brutus's assessment of
human nature more realistic? What was Hamilton thinking?
The last thing we can attribute to Alexander Hamilton is
naiveté. He was a brilliant, hard-boiled politician. He knew
how to run an economy, and he understood how to establish a
national government on secure grounds. It was he, partnered by
Madison, who did the most to generate support for calling the
Constitutional Convention to begin with.
Was this pallid statement of "judgment, not will" the best he
could do in answer to the Anti-Federalists? Did Hamilton reflect
the understanding of the other Framers?
"An Extended, Firm and Independent
Judiciary"
In those extraordinary three and a half months in 1787 when the
charter of our government and of our liberty was being drafted, the
Framers spoke relatively little about the judiciary. True, there is
little doubt but that they expected the courts to exercise judicial
review of legislation, and certainly the Anti-Federalists agreed
that there would be judicial review -- that's what worried them. But
compared to the Framers' concern with the legislative branches,
with the executive, and with the states, the men who wrote the
Constitution were not much bothered about the judiciary.
Brutus was certainly correct in that there were almost no checks
of any significance on the judiciary in the Constitution, for the
fact is that the Framers simply did not believe that the courts
needed much external checking. On the contrary, they took pains to
remove external checks. The lack of judicial independence was one
of the bill of complaints in the Declaration of Independence. In
the Constitution, the drafters -- in contrast to King George's
actions -- made the judges independent for their whole tenure through
the Good Behavior Clause. They gave them salaries that could not be
reduced.
In Federalist 78 and Federalist 81, Hamilton took
aim at the Anti-Federalist suggestion that the courts, as in
England, should be folded into the legislative branch. Mixing
judges and legislators would be placing irreconcilable public
personae in the same institution, he said. No judge could exercise
detachment and independence in such company. At the same time as
Hamilton declared that the judiciary, in defense of the
Constitution, would be a check on the other branches, he celebrated
the judiciary's independence from the same checks and balances that
the Constitution had so artfully placed on the President and
Congress.
Hamilton had history on his side. He was reflecting the Framers'
undoubted concern for the independence of the judiciary when they
defeated the idea in Philadelphia that the Supreme Court justices
should be part of a quasi-legislative "Council of Revision" to
review congressional bills before they became law.
Consequently, in the final document, there were few external
checks upon the judiciary. The Framers expected the President's and
the Senate's role in the appointment of judges to be used to
elevate competency, and not ideology, to the bench. Hamilton
expected, and the First Congress bore him out, that the Congress
would use its power to make exceptions to the appellate
jurisdiction of the Supreme Court primarily for the practical
purpose of making the judicial process manageable and
efficient.
Hamilton and the Framers believed that the amending and
impeachment powers would be instituted only in extraordinary cases.
He opined that if, in an extreme situation, the judiciary attempted
to supplant the legislative process, the Congress would have the
means to defend itself through impeachment. But the Framers knew
that Congress's impeachment power was its alone and that Congress
would have to make the decision for itself whether a judge should
be impeached.
In fact, practice has borne out the idea that judges guilty of
crimes and misdemeanors would be impeached, but those attempts, as
with Justice Samuel Chase, to impeach and remove judges for their
decisions have failed. The one real check exercised by Congress
until the 1870s was the limitation of federal court jurisdiction,
but that was mainly because there was so little federal law to
adjudicate until that time. In their judicial function, therefore,
judges enjoy broad constitutionally protected immunity.
The Constitution made judges independent precisely to give them
the power to limit the executive and legislature. For without such
limitations, along with the many others instantiated in the
Constitution, legislative and executive excesses could be corrected
only by the awful "appeal to Heaven," with the pain and disruption
of revolution. The very independence of the courts was to protect
liberty. Hamilton later wrote, "[I]f the laws are not suffered to
controul the passions of individuals, thro the organs of an
extended, firm and independent judiciary, the bayonet must."
Keepers of the Rule of Law
Thus, the Constitution needed an independent judiciary: "The
complete independence of the courts of justice is peculiarly
essential in a limited Constitution," wrote Hamilton. But what made
the Framers think they could trust an independent judiciary? At
bottom, the Framers placed few checks on the courts because there
was a presumption that the courts and the judges would simply act
differently from the political actors in the executive and
legislative branches. What gave the Framers such confidence?
Most of the Framers were lawyers or were educated to know about
the law. Most in that litigious society had been to court and had
seen firsthand how judges act. Even when they lost a case, these
men retained respect for the court. They understood that there was
a set of ethical norms integral to being a judge that made a judge
a keeper of the rule of law and not a threat to it.
The Framers certainly knew firsthand the venality of many who
inhabited other centers of political power -- those who used will. It
was will that needed to be checked, as Madison so clearly
articulated in Federalist 10. But the Framers believed that
judges, qua judges, were different: that the judges
possessed public virtue by virtue (pun intended) of their very
office. Think of the battles between Hamilton and Jefferson, for
example. What drove them to despise each another? If we look
carefully at what so incensed Hamilton about Jefferson and
vice-versa, it was not just policy differences. It was that each
believed that the other man had lost his public virtue and was
unworthy to be a leader in a republic.
Thus, in the Constitution, as Hamilton would put it, will needed
to be circumscribed, but judgment, the product of public virtue,
must be set free. Judgment constrains will, and will must not
hamper judgment. It was within the judicial craft -- channeled
by the techniques of statutory interpretation, of precedent,
stare decisis, reasoned argument, and respect for the
political decisions of the discretionary departments of government,
as they are called -- that judges exercised their judgment. Judges
were not automatons, but sentient men who exercised their
individual reason within the constraints of virtue, including a
particular set of judicial ethics that their office emplaced upon
them.
Hamilton, himself a superb lawyer, understood that each of these
elements constrained the judge's will by the craft of judging
itself. "To avoid an arbitrary discretion in the courts," he wrote,
"it is indispensable that they should be bound down by strict rules
and precedents, which serve to define and point out their duty in
every particular case that comes before them." The persons who are
to be judges are those "selected for their knowledge of the laws,
acquired by long and laborious study." These men and women are
those who have learned to respect the rule of law in all its
manifestations:
- The law of statutes (hence the need for rules of statutory
interpretation);
- The law of the court (the rules of precedent);
- The law of process (which limits what a court may or may not
hear);
- The law of the case (the finality of res judicata);
and
- The law of the judge (the norms of judicial ethics).
Most importantly, judges must abide by the law of reason and
provide a justification for their decision in an opinion open to
the scrutiny and critique of all.
Originalism vs. Legal Realism
Of the highest order in our democratic republic is respect for
the law of the Constitution. In other words, originalism is an
essential element of judicial virtue, which the Framers intended
and trusted would be the self-regulating mechanism of the
independent judiciary.
Take Chief Justice John Marshall, for example. In Marbury v.
Madison, Marshall turned aside his party's invitation to engage
in the political wars with President Jefferson. Overtly deferring
to the intention of the Framers, Marshall insisted that "The
Framers of the Constitution contemplated [intended] that instrument
as a rule for the government of courts, as well as of the
legislature." In words that judges and academics might well
contemplate today, Marshall said:
Why, otherwise, does the Constitution direct judges to take an
oath to support it? This oath certainly applies in an especial
manner to their conduct in their official behavior, [their judicial
craft]. How immoral to impose it on them if they were to be used as
the instruments, and the knowing instruments for violating what
they swear to support.
Today's legal realists would have no truck with Marshall's moral
sensibility.
Chief Justice Marshall was one of the great practitioners of
originalism, a respect for the meaning of the Constitution as
drafted, and of the moral constraints that channel a judge's
actions so that the judge makes acts of judgment, not acts of will.
Under such judges, we would, in Marshall's and John Adams's and
Aristotle's words, be living under the rule of law, not the rule of
men. St. Thomas Aquinas also made obedience to the written law an
essential moral requirement for the judge. Quoting St. Augustine,
Aquinas wrote, "In these earthly laws, though men judge about them
when they are making them, when once they are established and
passed, the judges may judge no longer of them, but according to
them."
The legal realists and their predecessors in the early 20th
century urged judges to jettison judgment in favor of will. In
terms of constitutional fidelity, their words took hold, and for
many decades, Supreme Court justices left originalism behind and
sought instead to rule by their own lights. Yet the inheritance of
the judicial craft still constrained judges. Public virtue remained
alive, albeit in diminished form. Even without the guiding light of
what we call today originalism, judges could still act nobly. One
of those great judges was Benjamin Cardozo.
I doubt that there were any originalists among Cardozo's fellows
on the Supreme Court -- recall that substantive due process was en
vogue at the time. The Progressives, with whom Cardozo
sympathized, believed that the original Constitution was flawed, so
there was no inherent institutional respect or intellectual respect
for the Constitution among them. There was, across the intellectual
spectrum, a revolt against formalism, including legal formalism.
Other writers, such as Oliver Wendell Holmes, Jr., and Roscoe Pound
had convinced a generation of academics that judges must bend the
law to the felt needs of the times.
Cardozo greatly respected Holmes and Pound, yet this decent,
humble, and learned man sought to fashion a standard of moral
accountability for judges who had lost their handholds. He even
looked at natural law, but natural law was in a state of
intellectual decline at the time. Still, he continued to believe
that judges were morally accountable for their decisions. In his
writings, he sought to show how a judge could practice this morally
freighted task in a legal world that had lost its ancient
standards.
Revealingly, he was reviled by the leading legal realists of the
day, who thought Cardozo a fraud. They said that his moralizing was
but a smoke screen behind which he simply implanted his own desires
into the law.
Even for this retiring man, that was going too far. Before 2,000
people of the New York City Bar Association in 1932, during the
time that he was being considered for the Supreme Court, Cardozo
criticized the legal realists for locating judicial decisions "in
the visceral reactions of a judge" or, at best, in what the judge
thought was good public policy. It was one of the strongest and
most principled criticisms of legal realism that had yet been
voiced.
Cardozo was saying, along with Hamilton, that it is judgment,
the virtue of prudence -- in the classical sense of duty -- that should
guide a judge. Reflecting Cicero, Cardozo believed that "office"
and "duty" were, as in Latin, the same word. Judging in that sense
is not will, howsoever will might be dressed up. The philosopher
Michael Polanyi said it best in referring to how judgments are
formed: "The freedom of the subjective person to do as he pleases
is overruled by the freedom of the responsible person to do as he
must." Will yields to judgment.
The legal realists never forgave Cardozo for calling them to
account, and that is why I believe modern academics, who are the
heirs of the legal realists, do not praise him much
anymore -- because he was speaking in a different moral voice. But
the legal realists, whose views have filtered through the law
schools thence through the generations of students, had their day,
especially in the appointments of Franklin Roosevelt in his second
term and, more particularly, among some members of the Warren
Court. By the time of the Burger Court, some justices made no bones
about opposing legal and social norms in the country by fiat -- by
will.
In the extreme, such judges lost the moral standing of what it
is to be a judge. They no longer possessed that public virtue, that
ethic of judging that men like Marshall, or even non-originalists
like Cardozo, had. Finally, particularly with Roe v. Wade,
prominent liberal academics had enough. John Ely, Louis Lusky,
Archibald Cox, and, yes, even Laurence Tribe urged the Court to get
back to constitutionally based decision-making: to move, to
paraphrase Hamilton, "back from will towards judgment."
"Back from Will Towards Judgment"
But it was Attorney General Edwin Meese in a 1985 speech before
the American Bar Association -- a speech that paralleled Cardozo's
speech a half-century earlier -- who called for a return to a
jurisprudence of original intention and turned the dismay of
liberal and conservative academics into a movement. His speech was,
of course, attacked by those whom he had exposed. One sitting
justice actually took personal aim at Meese, accusing him -- as
Cardozo had been accused -- of harboring a political objective. It
was a case of projection. But Meese did not reply in kind. He held
seminars in the Justice Department as to what an ethic of
originalism would mean in practical terms. One of the lawyers in
the Department who attended the seminars was a young John
Roberts.
What Meese was calling for was not just a better mode of
interpretation. At bottom, Meese was asking judges to reassume the
kind of public virtue that the Framers had so trustingly believed
of them, trusting in that virtue so much as to let judges be
substantially free of the checks that constrained the other
departments of government.
What Edwin Meese began has grown fruit. Today, originalism is
the most written-about mode of interpretation, so much so that
being an originalist is the "in" thing among academics of all
stripes, even those who are not truly originalists. Originalism as
a theory has now gone through many redactions and modifications. It
is today a coat of many colors, but it is now the dominant mode, in
one form or another, of theorizing about the Constitution.
Scholars, since Meese's speech and even before, have opened up
the original meaning of clause after clause of the Constitution,
something that Cardozo or his generation did not have at hand. We
now know more about the original understanding of the Framers and
the generation that approved the Constitution than any generation
since the Founders themselves. We have it in our hands now, and it
has had an effect on the Supreme Court.
Most important, originalism has returned to the members of the
Court and offered them a common, normative grounding of their
craft, even affecting judges who a decade or so ago were not or
would not have been originalists. Thus, Justices John Paul Stevens
and Clarence Thomas can debate the original understanding of the
Qualifications Clause in the U.S. Term Limits case. Chief
Justice William Rehnquist and Justice David Souter debate the
Framers' understanding of the Establishment Clause.
Even among originalists, there have been fruitful debates.
Justices Antonin Scalia and Thomas debate how the history of our
struggle with England informs whether the First Amendment was
designed to protect anonymous political speech. Justices Anthony
Kennedy and Thomas debate the original understanding of the
Twenty-First Amendment. (And in that case, Justice Stevens actually
concurred with Thomas on the grounds that Thomas had the better
argument regarding original understanding.)
The entire set of opinions in the Heller case on the
Second Amendment -- the entire set -- is a treatise on the original
understanding. True, some Senators still want judges who will
exercise friendly policy will, not morally grounded judicial
judgment. But across the country, from lower court judges on
up, because of educated briefs on what original understanding is,
judges now can rise above the politician -- thanks to Alexander
Hamilton and John Marshall and Edwin Meese and the Framers. Thanks
to originalism, judges can now celebrate their craft without
apology. And despite the bad decisions still being issued because
we have not won the day entirely, that is still awfully good
news.
Advancing the Cause
True, the next four to eight years may see some setbacks, but
those of us wedded to the rule of law can still advance the
cause.
First, we can continue a vigorous defense of originalism
as a coherent theory, as a practical method of interpretation, as
morally obligatory, and as historically correct.
Second, in our briefs, arguments, and commentaries to and
about judges, we can draw on the other aspects of judicial
virtue -- such as respect for statutes, for precedent, for procedure,
for ethics -- and by our affirming demeanor sustain the better
guardian angels, if you will, at the judge's side. As Judge Michael
McConnell has stated, a judge operates with a number of narrowing
constraints: text, history, past democratic practice, and
precedent. Judges still respond to that vocabulary of argument.
Originalism and its moral values will not be lost. Public virtue
wedded to the idea of judging has been part of the Western
tradition from Aristotle, from Cicero, from Aquinas, from Marshall,
and from the Framers. And it is so much closer to realization in
this generation than it has been for over 100 years. There is,
despite the problems, much to celebrate.
David F. Forte is Professor of Law at
Cleveland State University and Senior Visiting Fellow at the Center
on Religion and the Constitution at the Witherspoon Institute. He
delivered these remarks at a Heritage Foundation Legal Strategy
Forum.