Lively and at times acrimonious debates over the proper way for judges to determine the Constitution's meaning continue unabated. For years Hugo Black appeared to be the only modern Supreme Court justice committed to a positivist or interpretivist jurisprudence in which constitutional meaning is discovered primarily through a literal reading of its text and inquiries into the intent of its framers. Now, several members of the Court -- most notably the Chief Justice and Justices Scalia and Thomas -- along with a host of scholars and politicians purport to embrace a philosophy of original intent. Others, on the bench (especially former Justices Brennan and Marshall) and off (including Michael Perry and Ronald Dworkin) have championed an essentially noninterpretivist jurisprudence drawing constitutional constructions largely from evolving conceptions of ethics, morality, and social need rather than from the "dead hand" of the past. John Hart Ely has advocated a mixture of interpretivist and noninterpretivist elements, while Professor Dworkin, also seemingly bent on having his cake and eating it, too, has argued that the Constitution's framers INTENDED its provisions to be given noninterpretivist meanings based on conceptions of fairness.
Comes now Scott Gerber, provocative critic of the prevailing schools of thought and forceful advocate for a jurisprudence of "liberal originalism." According to Gerber, Rehnquist and company, whom he terms "conservative originalists," invoke the doctrine of original intent largely as a means of pursuing conservative political goals. Noninterpretivism also produces constitutional constructions based on the personal (and, in the modern era, generally liberal) preferences of a majority of justices. Gerber, by contrast, argues that the Constitution's framers intended that its meaning reflect neither a conservative nor liberal agenda but the natural-rights philosophy of the Declaration of Independence -- a philosophy that will yield both conservative and liberal results and thus, apparently, transcend personal predilections. Such an approach, he contends, is "liberal" in the sense that it bottoms constitutional interpretations on principles of eighteenth century liberalism; but it also embodies the "original intent" of the Constitution's framers that the document's meaning be derived from the natural-rights principles of the Declaration of Independence. Hence, Gerber's classification of his jurisprudence as one of "liberal originalism."
Consistent with its historic role under the doctrine of judicial review, the Supreme Court, Gerber further argues, should have final power to determine the reach and limits of the natural rights which the Constitution embodies. But this would not mean, he insists, that judges could impose their policy choices on the constitutional text, despite the modern tendency to equate "natural rights" with personal whim. Instead, they would simply enforce rights discoverable in the Declaration of Independence. Moreover,
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jurisdictional controls, the amendment process, impeachment proceedings, and related constitutional safeguards are always available to restrain judges willing to abuse their concededly immense authority. In an effort to demonstrate that his approach is workable as well as historically defensible, Gerber subjects a number of significant constitutional issues to review under natural-rights standards he claims to have derived from the Declaration of Independence and the philosophy of John Locke, on which much of the Declaration was based. Drawing on the Declaration's assertion that "all men are created equal," he condemns as unconstitutional class-based legal differentiations "not based on a UNIVERSALLY true and relevant characteristic" (p. 175), including preferential treatment programs designed to overcome the effects of past discriminatory practices. The natural-rights philosophy of the Declaration and Locke, he argues, guarantees equality of opportunity, not result. Characterizing "the preservation of mankind" as "the fundamental law of nature" and applying that natural right to the capital punishment issue, Gerber also concludes that the death penalty is not inherently unconstitutional. Under the moral theory of Locke, reasons Gerber, an individual is obligated to act rationally as a condition "for being subject to natural law and the possessor of natural rights under that law" (p. 177). An individual who takes another person's life, except in self-defense, violates the basic obligation to preserve mankind and thus is not acting rationally. Such persons thereby forfeit their right to life. Nor is the state's taking of a life inconsistent with the preservation of mankind; "the fundamental law of nature," Gerber explains, "is the preservation of MANKIND, not the preservation of INDIVIDUAL persons" (p. 177). Since, on the other hand, "adult, consensual, private homosexual acts" would not appear to be a serious threat to mankind's preservation, laws restricting such activity "represent nothing more than the majority's attempt to enforce its morality on the minority" (p. 190) and constitute an improper interference with the individual's "natural right to freely direct the course of his or her life, including his or her sex life" (p. 190). Gerber subjects other civil liberties issues to the same sort of natural-rights analysis but reserves judgment on the abortion question until such time as it is established when life begins. If an unborn child is a "life," he concludes, there is no natural right of abortion; in fact, innocent life is to be preferred over other life. If, on the other hand, "life" extends only to postnatal beings, the woman's natural right "to freely direct the course of her life" (p. 182) certainly includes the childbearing decision. Gerber's study is a good read, and he is to be commended for seeking to find a firmer guide to constitutional meaning than the personal predilections of judges. Arguably, however, the writings of Locke and text of the Declaration of Independence are hardly more restrictive of judicial (or scholarly) discretion than the noninterpretivists' appeals to justice and social utility or the interpretivists' quest for original intent. I find it more difficult than Gerber does, for example, to read into the natural rights philosophy of the Declaration a
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freedom to engage in homosexual activity -- even that which is adult, private, and consensual. Or a ban on racial discrimination. It is no doubt true that many of the founders considered slavery a violation of natural rights, yet tolerated its continuation for reasons of expediency. But just as many probably accepted the natural superiority of certain races, and innate inferiority of others, as basic to the law of nature. Natural law has been compared to a harlot -- available to everyone. I am afraid the same thing can be said of the natural rights philosophy of the Declaration of Independence. Nor is Gerber entirely fair in characterizing "conservative originalism" and noninterpretivism essentially as tools for achieving conservative or liberal results. Hugo Black's emphasis on text and historical record led him to embrace both conservative and liberal interpretations of the Constitution's meaning. Antonin Scalia's originalism has taken him generally in conservative directions highly deferential to government, but his stance in constitutional cases is by no means invariably predictable. While according the fifth(and fourteenth) amendment's takings guarantee a broad construction protective of private property, for example, Justice Scalia recognizes no power for courts to review nondiscriminatory state regulations impinging on interstate trade. Noninterpretivism is based, of course, on the notion that the Constitution's meaning should turn on evolving conceptions of justice, ethics, and social utility; and such standards, as Gerber contends, can be expected to lead an individual judge largely in one policy direction. In other hands than Gerber's, however, application of the natural-rights philosophy of the Declaration and Locke's writings arguably could yield essentially the same sort of policy-oriented and one-directional body of constitutional interpretation as noninterpretivism is claimed to produce. Such flaws not withstanding, TO SECURE THESE RIGHTS is highly recommended for students of the courts, especially those committed to the tremendously important continuing quest for principled to the reach of judicial discretion.
