Original Intent and the American Soul

Claremont Review of Books, Spring 2005/06.


While quibbling over Harriet Miers’s ill-fated nomination to the Supreme Court, conservatives overlooked the more serious flaw in President Bush’s claim that he would appoint justices to the Court in the mold of Antonin Scalia and Clarence Thomas. Although Scalia and Thomas may both be regarded as conservative “originalist” judges, their views of the Constitution are fundamentally different. Positivists like Justice Scalia who look only to the “text and tradition” of the Constitution, but not to its moral principles, are ultimately no match for the liberal critics of original intent jurisprudence.

Even Ralph Rossum, an admirer of Justice Scalia, concedes in the pages of the Claremont Review of Books that Scalia’s “understanding of democracy” is essentially “‘vulgar majoritarianism.'” (“Correspondence,” Fall 2005). Scalia does not recognize that a majority, in the absence of minority rights, is not a democratic majority. Rossum goes on, however, to minimize the “practical consequences of Scalia’s positivist assumptions.” “If Scalia were a framer,” he writes, “they would be significant—and harmful. But Scalia is simply a justice on the Supreme Court.” Yet justices of the Supreme Court are in a peculiar sense trustees of the work of the framers. The framers’ Constitution cannot survive if those entrusted with its preservation are alienated from its principles.

Claremont Review of Books