Originalism and Constitutional Translation: Part II

Part I, setting forth the concept of constitutional translators is here. In short, that post tentatively explored the concept of "constitutional translators," mezzo-level elites who take sophisticated constitutional law and legal theoretical ideas and arguments and repackage them for a lay audience in a way such that they are more easily digestible. This follow-up post sets forth a nascent theoretical framework for thinking about the role these actors play in our constitutional politics and looks at how Charles Murray and Mark Levin translate constitutional conservatism.

That ordinary citizens and voters form their opinions based on elite cues is well-established in the political science literature. Furthermore, as politics has become increasingly polarized since the late 1970s, and especially since the 1990s, voters and “engaged citizens” increasingly see the political world through partisan-colored glasses, believing, for example, that the deficit shrank (or grew) under President Clinton based on their partisan priors. (Many people, of course, simply do not pay much attention to politics and have ill-formed or vague notions what, if anything, they believe).

However, arguments about constitutional theory and interpretation, such as originalism, differ quantitatively (they are not talked about as much by elites as other political issues) and qualitatively (it takes more effort to translate these arguments than (say) concerns about immigration). A crucial force, then, in educating the public on these complex issues is partisan media. The conservative media ecosystem has played a significant role in this development as consumption of conservative media is inherent to that group identity. Constitutional arguments, therefore, are ripe for “translation.” From the 1950s to the 1970s, these arguments largely flowed from conservative media activists acting as as constitutional translators for the engaged conservative public. Later, as the conservative media ecosystem grew, the translation became more complex: from sophisticated academic theory and conservative legal elites to conservative governing elites to constitutional translators to conservative voters.

An instructive example of this downward flowing process from academics and elites to constitutional translators to the engaged public (who are most likely to read these books and engage with them) can be found in Charles Murray’s 2015 By the People: Rebuilding Liberty Without Permission. Murray, who has long been an authoritative social scientific voice on the Right (his breakout book was a critique of the welfare state (Losing Ground (1984)) and the deeply controversial, and largely debunked, The Bell Curve (1994)), is a prototypical constitutional translator. He began By the People with “A Note on Presentation”:

By the People takes on topics that are esoteric in some cases and in all cases have been the subject of extensive and contentious scholarship. How does one deal with all the complexities and still present the material in a way that an intelligent but not obsessive reader can be asked to follow? I use my three favorite measures: For those who want to dig deeper, I give short reading lists of the books I found most useful. Boxed text introduces related issues that are of interest but not essential. Endnotes expand upon points that are stated briefly in the text.

Murray’s book is further instructive as he relies on the scholarship of academic originalists such as Randy Barnett, Michael Greve, and Gary Lawson (271, 272, 278, 279, 285) and libertarian law professor Richard Epstein, (285, 286) to construct his argument. Here, one can see the theory and developmental themes in action: originalist academics—named explicitly in the acknowledgements and footnotes—are relied upon by a constitutional translator who opens his book with the incantation “that we are at the end of the American project as the founders intended it” (xi) and deems the audience for his book “Madisonians [or] those people who are devoted to limited government. In today’s terminology, that includes classical liberals, libertarians, and many conservatives” as opposed to “Wilsonian progressivism” (xiv, xv, emphasis in original). Finally, Murray contends the “latest received [scientific] wisdom about best practice is more often driven by ideology and expertise” and that technocratic bureaucrats—here Murray invokes public choice theory—are inevitably biased (180-183).  

Murray is a talented constitutional translator, but based on certain metrics, Mark Levin maybe the most important of the current conservative constitutional translators. Levin, who served in the Regan DOJ, did not follow a path into academia or the bench, as many of his colleagues did. Instead, Levin built something of a media empire as a particularly provocative conservative commentator. One instantiation of this empire is his long list of New York Times bestsellers. Men in Black, with an Introduction by Rush Limbaugh and an Afterword by Attorney General Meese, trained Levin’s sites on the Supreme Court.

The book, however, has been misunderstood by some liberals. Slate’s Dahlia Lithwick skewered it, stating “no serious scholar of the court or the Constitution, on the ideological left or right, is going to waste their time engaging Levin’s arguments once they’ve read this book.” This misapprehends the point of Levin’s book—he is not interested in a scholarly debate, but educating the engaged conservative who, even though the Court has moved consistently rightward since the Warren Court, is still unsatisfied it is not sufficiently conservative.

Levin begins by advocating for “the appointment of more justices who are more faithful to the Constitution—lawyers call them ‘originalists’” (xi). Levin is thus equating originalism with constitutional fidelity and implicitly branding legal liberalism as definitionally deviant. To Levin, the dichotomy is clear: there are originalist judges who “believe they are bound” by the “text of the Constitution” and “judicial activists or non-originalists” who “substitute their personal beliefs, values, and policies for those enumerated in the Constitution” (13). The cases that typify non-originalism are “Dred Scott v. Sandford, Plessy v. Ferguson, Korematsu, and Roe v. Wade” (14).

The rest of the book is devoted to making clear to conservatives what is originalist, and thus faithful to the Constitution, and what is heterodox. The Court, with the help of the American Civil Liberties Union (ACLU), has engaged in an “assault on the free exercise of religion” (48). These same culprits also invented the “non-existent” right to privacy, the constitutional doctrine which protects reproductive rights. And the “push for gay marriage,” Levin informs his reader, is coming from the unelected and thus democratically illegitimate judiciary (71). Levin also takes up the cause of the color-blind Constitution—the “Fourteenth Amendment explicitly provides for equal protection of all races” in this context meaning white students, firefighters, and small businessmen aggrieved at “reverse discrimination” in governmental decisions (99) (thus demonstrating how the civil rights movement was a major factor in shifting the conservative racial narrative to colorblindness as the normative ideal; notice, furthermore, that the constitutional legitimacy of the 14th Amendment is no longer at issue as it was for an earlier generation of translators). Finally, Levin contends the Court’s immigration decisions demonstrate continued “social engineering” (101).

But Levin must make a positive case—originalism does not only rule out certain constitutional rights claims by disfavored groups (though that is certainly an aspect of its appeal), but also contains substantive meaning. After sharing with readers that “most of what I learned about America’s founding occurred outside the formal classroom” (here again we see an implicit attack on expertise), Levin trumpets the Declaration of Independence as the key founding document that “made our founders so special” (206). The Declaration “recognize[s] a greater, higher authority than the government as the source of our rights” and is “what makes America different from other nations, past and present” (207).

(It is worth noting here that academic originalists and the judges and justices who self-identifiy(ied) as originalists would reject Levin’s inclusion of the Declaration and natural rights as relevant to divining the Constitution’s original meaning. And of course Levin is wrong as a historical matter about the connection between the Declaration and the Constitution. Gordon S. Wood, The Creation of the American Republic, 1776-1789 (Charlotte: University of North Carolina Press, 1969); Bernard Bailyn, The Ideological Origins of the American Revolutions (Cambridge: Belknap Press of Harvard University, 1992 [1967]); Jack Rakove, Revolutionaries: Inventing an American Nation (London: William Heinemann, 2010); Michael J. Klarman, The Framers’ Coup: The Making of the U.S. Constitution (New York: Oxford University Press, 2016)).

Levin followed up Men in Black with another bestseller: The Liberty Amendments: Restoring the American Republic (2013) amplifying some developmental themes and highlighting the constitutional betrayal of the Progressives. In this volume, Levin importunes that “constitutional republicanism” needs to be “restored” from “the Statists” and their “philosophers, experts, and academics” (1, emphasis in original). Levin’s Statists, like Gordon’s “centralizers,” refuse to be bound by the Constitution’s “text and history” unlike those “who self-identify as originalists, constitutionalists, and conservatives in asserting allegiance to the Constitution, as I do” (17). Levin’s historical villains are Woodrow Wilson, the Progressives (and the “New Dealers”):

  . . . in the late eighteenth century, as part of the Progressive movement’s agenda, a concerted campaign was launched to undo the constitutional construct by concentrating and consolidating power in the federal government” . . . the Progressive mind-set [has had a] destructive impact on the way we practice self-government in a twenty-first century, post-constitutional nation”  (34, 103)

In addition to President Obama’s “despotism” (4), the “Supreme Court with just five of its nine members can impose the most far-reaching and breathtaking rulings on the whole of society” (5). What is needed is “the wisdom to rebalance the government in a way that is without novelty and true to the Framers’ original purpose” (10). Levin’s Manicheanism is clear: The “Statists’ utopia and the Framers’ Constitution cannot coexist” (9).

Levin’s translation is a stark message for constitutional conservatives. The Constitution must be restored from Statists and their “experts” and “academics” who have perverted the original meaning of the Constitution. Levin is also translating a revisionist historical narrative that had been percolating in the legal scholarship of Randy Barnett (who appears on Levin’s media platforms), Richard Epstein, and David Bernstein, of “rehabilitating” the constitutional conservatism of Lochner and sourcing blame on the Progressives for enlarging the federal government at the expense of state sovereignty—something taken as an article of faith, rather than a debatable historical point. Levin, while criticizing the Court’s “social engineering,” also attacks the Court’s institutional legitimacy, a legitimacy it cannot regain until judges “faithful” to the Constitution (originalists) are nominated and appointed. While the historical breakpoint had been pushed back to the Progressive Era, and narrative frame of academic originalism, as translated, powerfully structured his translation, the developmental themes of postwar constitutional conservatism persist.   

Comments

[anon]

One must admit this is a better attempt at something that at least resembles "scholarship." It is a fairly well done book report.

However, how much do we learn by reading these slanted book reports on Mark Levin's work?

I suspect that most readers don't know who he is, and his supposedly profound effect in the world is so significant only in the minds of zealots on the left who, for example, demonize Rush Limbaugh as the religious leader of all of those "deplorables."

FWIW, Levin's analysis is of course not accurately represented by the snips that, Twitter like, supposedly capsulize his views, but, no matter. Noone cares what Mark Levin states about the constitution, NYT bestsellers notwithstanding. We all know that surveys regularly show the voters have a dismally poor understanding of even the basics about our Constitution: and they certainly don't dwell on the little nuances in the snippets reported above.

Here is an example of the pov of the author: " the civil rights movement was a major factor in shifting the conservative racial narrative to colorblindness as the normative ideal." Any person who believes this way is simply a "conservative" hater, who believes that no calumny is too wrong or too harsh to hurl at a dull bunch of toothless racist hillbillies. (As demonstrated previously, this author butchered Bork's view of Brown; above he blithely states that Levin believes "The cases that typify non-originalism are “Dred Scott v. Sandford, Plessy v. Ferguson, Korematsu, and Roe v. Wade” (14)." This reader relishes the cognitive dissonance in the piece.

But, again, this piece is less inflammatory and more anodyne.

[Deep State Special Legal Counsel]

Some of my best friends are Republicans and Conservatives. They have discussed "originalism." Most are not focused on civil rights, abortion or any other cultural issues. They just don't like some goofy judge letting some criminal off the hook because her rights were violated under constitutional "shadows" and "penumbras." They want judges to follow the law, not find some new "loophole."