Trump and the Originalists

Trump does not hold any discernable constitutional philosophy but Trumpism owes its meteoric rise in part to originalism, which was so forcefully championed by Antonin Scalia over his long career. I see Trumpism as having three parts: (1) a policy commitment to economic nationalism and law and order; (2) a nativist emotional appeal; and (3) a nihilistic attack on elites and elite institutions—nihilistic because there is no explanation as to what will replace them, only the hope that something better will. It’s #3 that I associate with originalism.

It’s not that originalism itself is nihilistic—quite the contrary. Originalists believe that constitutional law today should be based on the understanding of the Constitution and its amendments when they were ratified. According to its supporters, the original understanding supports a limited national government of the sort that existed before the twentieth century. Such a government would be deprived of the power to interfere with people’s economic and political liberties but would remain strong enough to protect the country and support a national market.

The nihilism lies not in the vision itself, but in the implications, which were originally implicit, but have been spelled out more explicitly in the last two decades, with Scalia as champion. The argument is that because American law and legal institutions have deviated from this understanding, they are illegitimate. The entire administrative state—the EPA, OSHA, Obamacare, social security, and all the rest—is illegitimate. The administrative state is the apparatus through which the national government accomplishes its objectives; without it, it can hardly do anything beyond defense and internal security.

And what this means is that presidents from FDR (if not earlier) to Obama have wielded authority that they did not have. That Congresses have betrayed the nation by acquiescing in the aggregation of presidential power. That the Supreme Court has failed to enforce the Constitution. Nearly all the officeholders at the top of our government over the last century have violated their oath to defend the Constitution.

While the view now is that the cancer has metastasized, at one time originalists and their fellow travelers thought that the remedy was simple and could be accomplished within constitutional forms. All that was necessary was for the public to elect a president who takes the Constitution seriously, and for that president to appoint originalists to the Supreme Court. Optimists believed that even liberal jurists could be persuaded to adopt originalism, leaving even Democratic presidents no choice but to appoint originalists to the bench. Once in office, these justices would work to overturn a century of precedents and welcome home what has been called the “Constitution in exile.”

During the Reagan administration it was just possible for an intelligent person to believe in this vision. High-level officials really did take this view seriously and expended effort to bring it to reality. But they failed. It turned out that there was no mainstream political support for originalism—in a substantive as opposed to merely rhetorical sense. Most ordinary people admire the founders but want a strong national government, and all the goods that it provides—from social security to environmental protection.

The major cause of the failure of originalism was thus practical and political. Reagan was able to appoint only one Supreme Court justice who was an originalist—Scalia himself. His other two appointments—Kennedy and O’Connor—were not originalists. Over the years, presidents—whether Democrats or Republicans—failed to appoint originalists (except Clarence Thomas). In retrospect, two major knells of originalism’s doom were the appointments of Alito and Roberts by George Bush—solid conservatives but not originalists. It also became clear that Bush did not care about originalism or even the Supreme Court; not even ideologically conservative presidents could be depended on to ensure an originalist Supreme Court. Meanwhile, Supreme Court decisions themselves—while more conservative than in decades—did nothing to dismantle the administrative state, in fact, to the contrary, affirmed it.

Scalia finally realized this. His initial happy-warrior pose gave way to bitterness, and over the years his dissents became increasingly shrill, as he came to use them as platforms to attack the Court rather than merely to disagree with his colleagues.

It was quite a rhetorical trick, but Scalia managed to anticipate Trumpian populism by associating the constitutional vison of the aristocratic founders with democracy, and accusing the liberal justices—who emerged from and hobnobbed with the same exclusive circle of establishment types as he did—of being out-of-touch elites. It was this claim that helped pave the way for Trumpism. A key element of Trump’s appeal derives from the sense that American institutions have failed us. Scalia, and the Republican politicians who deified him, confirmed this view by placing the blame squarely on the shoulders of a hopelessly corrupted Supreme Court while invoking a nostalgic vision of purer times. And who would be better placed than Scalia to make this accusation? The old, moderate response of Republican presidents from Nixon to Bush—“we’ll appoint better justices”—no longer persuades. They promised and failed to deliver. The rot is complete, the structure must be set alight in a long overdue Gotterdammerung.

I suspect that the vanishingly tiny number of pro-Trump conservative intellectuals described by Peter Beinart see in him Sulla, who reestablished republican institutions after his dictatorship, not Caesar (as Beinart claims), who sought to dismantle them permanently. I find it hard to imagine Trump, as dictator legibus faciendis et rei publicae constituendae causa, going to the trouble of proscribing the Democratic party, only to place nine originalists on the Court before retiring discreetly to Mara-a-Lago. But with the conservative intellectual establishment in ruins, there’s nothing left but hope.