« Neal Goldfarb on Corpus Linguistics and "Bear Arms"
Michael Ramsey
| Main | Adam Carrington on Scalia's Influence
Michael Ramsey »

07/16/2019

John McGinnis Responds to Jesse Merriam on Conservatism and Originalism
Michael Ramsey

At Law & Liberty, John O. McGinnis: Originalism, the U.S. Constitution, and the Continuity of Fusionism (responding to Is Legal Conservatism as Accomplished as It Thinks It Is? by Jesse Merriam).  Here is the introduction: 

Jesse Merriam has written a bracing, well-argued, and contrarian Liberty Forum essay, contending that conservatives should not celebrate the rise of the legal Right. Merriam’s complaint is that the Right is not synonymous with conservatism and, further, that the modern conservative legal movement is not really conservative, but libertarian. For him, the focus on original meaning is a mistake anyway, preventing the development of what conservatives really need: a jurisprudence rooted in “constitutional morality.”

I fear that I am in substantial disagreement with every claim. First, while it is true that the conservative legal movement includes many libertarians as well as conservatives, enforcing the Constitution as written is the only practical way to advance conservatism through constitutional law. Second, while any legal theory can be applied wrongly, originalism (particularly in the hands of originalist judges as opposed to academics who sometimes put a higher premium on creativity than soundness) advances conservatism because the Constitution itself is fusionist document that aids conservatism. Finally, Merriam does not identify any possible theory that would deliver better results than those delivered by originalism. And that is not a surprise, for originalism has distinctively conservative virtues that other interpretive theories do not. It is traditional, being in fact the universally accepted interpretative theory until the Progressive Era. Only in name is it new. And following the meaning of the Constitution’s text coincides with the common sense of the people, another conservative virtue.