A response to Adrian Vermeule
The Originalist Inquisition
The leaders of the One True Faith should root out dissent.
The originalist camp has minted a brand-new argument to compel the judiciary to adopt its point of view. The argument goes that judges swear an oath to administer justice under “this Constitution.” Since “this Constitution” is arguably the same Constitution that the founders drew up, it follows that jurists must apply the original public meaning of that document according to the oath. To do otherwise is to violate the substance of the oath, even if unintentionally.
Throughout the nation’s history, some of our most eminent jurists did not describe themselves as originalists. Many judges today don’t identify as originalists, either. Even most of the Justices on the Supreme Court do not claim to be originalists. So if these jurists are violating their oaths, why aren’t originalists drafting articles of impeachment?
After all, oath-breaking is a serious charge, and officials of the executive and legislative branches swear oaths to support and defend the Constitution as well. Should they idly sit back while renegade jurists create a new Constitution and impose it on the public? The counterargument employed by originalists is that these benighted jurists just don’t understand that originalism is the true faith, and that they are acting with all due sincerity. Punishing them would be unjust.
But this is a moral argument, and originalists shouldn’t care about that. To them, common good interpretations of the law are nothing but veiled forms of libido dominandi. And if we don’t let kids run around with scissors, why should we let judges destroy “the Constitution”? Why don’t originalists put their money where their mouths are?
Certainly, impeachment proceedings brought against non-originalist judges would be completely constitutional according to the original public meaning of the Constitution, which provides the procedural mechanism for doing so. And it would cement originalism into our law by reining in non-compliant judges and incentivizing them to interpret the Constitution “faithfully.”
No man is the judge of his own case. When you speed, you’re liable to judgment even if you didn’t know the speed limit. Sincerity won’t save you. Even in perjury cases, a jury determines the mindset of the accused—not the accused. In an impeachment, the legislature would look at all the evidence to ascertain whether a judge was truly acting in good faith when he or she endorsed non-originalist interpretations of this nation’s most sacred text.
It would be hard these days for a non-originalist judge to assert sincerity and ignorance as a defense anyway. What with all these papers flying about, the legislature could easily impute constructive knowledge to these errant minds.
Given these benefits, it’s unclear to me why originalists aren’t promoting the most effective means for ensuring that judges use the correct hermeneutic: the Originalist Inquisition. The executive or legislature could easily set up a commission to locate and punish heretics in the body politic, financially or otherwise. Like heterodox law school professors, for example. After all, under many of the innumerable denominations of originalism, Congress would have much wider latitude in regulating speech.
Or they could even issue interpretive guidance (an amicus brief) to judges setting forth the correct interpretation of the law and how it should be applied in a case—with an impeachment warning. Should the judge ignore this warning and disagree with this guidance, it would serve as evidence in the impeachment proceedings regarding the judge’s mens rea.
Of course, this mechanism could be used in ways that originalists won’t like. Indeed, the executive and legislature, the branches most responsive to the people, would have a say in how laws are interpreted. And a judge might fear for his eminent position, salary, and pension, and apply the law contrary to his judgment. But the only legitimate constraint on their authority to initiate impeachment proceedings I can think of is extra-constitutional: the common good. And originalists don’t want that.