In the current issue of The New Republic, Richard Posner, prolific writer and judge on the 7th Circuit Court of Appeals, reviews Reading Law: The Interpretation of Legal Texts, by Antonin Scalia and Bryan A. Garner. Posner and Scalia have a long-running battle, as might be expected from the fact that the former believes judges should decide cases based, at least in part, on economic reasoning while the latter clings to a textual originalism that sees the economic style of interpretation to be fundamentally unsound because it imports extra-textual factors into the reading of law and constitution. Posner is a sharp reasoner -- considerably sharper in my view than Scalia, who favors the clever bon mot and the witty, sarcastic one-liner. This is not the place to venture into a full-scale critique of Scalia's originalism, however. Suffice it to say that Scalia's interpretive methodology does not hold up well to criticism -- whether from the left or the right -- and Scalia's own practice of it seems suffused with the justice's political leanings. Posner finds Scalia's jurisprudence to be "incoherent," and makes a strong case for the claim. Indeed, Posner is overall a much more rigorous thinker than Scalia, though in the end I find him no more congenial because I do not agree that the purpose of law can be reduced to an economic one.
What is most interesting in this conflict is that both judges would generally be considered "conservative." One lesson from this observation is that conservative thought does not necessarily lead to "originalism." Scalia and Garner are right to argue that interpretive approaches (at least this one) have no inherent political leaning. One can imagine an originalist who does a better job than Scalia typically does determining the original meanings of words and phrases and passages and texts -- one who finds, contra Scalia, that those original meanings are considerably more "liberal" than does Scalia. Still, as usually practiced, originalism serves as a cover for politically conservative results, and as Posner is at pains to show, many of Justice Scalia's judicial opinions seem rooted far more in political conservatism than in originalism; certain sorts of results are much more likely to emerge from Scalia's search for original meanings than are others.
Another lesson follows from the first. "Conservatism" is a copious term, encompassing many different points of view and a subject of considerable controversy in itself. Traditionally, a conservative was someone who sought to "conserve," to keep things the way they are and have long been. That sort of conservative is wary of human interference with custom and tradition, believing that no person, no set of policymakers, can know enough to redesign what history has handed down to us without risking great harm, disorder, and destruction. That sort of conservative followed Edmund Burke, who attacked the French Revolution for casting off centuries of tradition in favor of newfangled ideas propounded by professors and writers -- and replacing a longstanding political regime with something new, untried, and, in the end, brutal and tyrannical. Michael Oakeshott best captured this sort of conservatism in his "On Being Conservative": "To be conservative, then, is to prefer the familiar to the unknown, to prefer the tried to the untried, fact to mystery, the actual to the possible, the limited to the unbounded, the near to the distant, the sufficient to the superabundant, the convenient to the perfect, present laughter to utopian bliss." Oakeshott was particularly concerned about the increasing role of what he called "Rationalism" in politics. The Rationalist is someone who thinks "the conduct of affairs . . . is a matter of solving problems, and in this no man can hope to be successful whose reason has become inflexible by surrender to habit or is clouded by the fumes of tradition." The Rationalist is a social engineer with no patience for "second best" solutions. The Rationalist thinks now is the time to achieve the ideal; his solutions are perfect and must be applied uniformly, across the board, with no local variation, for they are founded on the application of rigorous scientific reason to the problems a society faces. The true conservative, on the other hand, resists rationalism and favors the slow, tedious working out of solutions over time to the helter skelter vigor of rationalist interventionism. Tocqueville had this sort of conservatism in mind when he said that lawyers in America are the true aristocrats, the true conservatives.
Who represents such a conservatism today? Certainly not Posner, who espouses an activist judiciary bent on assuring that law serves to produce economic welfare by permitting the market to do its work. Posner is a proponent of the free market, a follower of Milton Friedman and a contributor to the so-called "Chicago School" of economics. In Posner's view, documents like laws and constitutions are ever subject to reinterpretation under the circumstances by wise judges equipped with the best knowledge and methodology economic science has to offer. Posner himself admits that the conservative label may not fit him very well these days, telling Nina Totenberg that he has "become less conservative since the Republican Party started becoming goofy."
But it is just as hard to make the case that Scalia is a conservative in any traditional sense. His vision of the judicial role involves a readiness to overturn statute and precedent in an activist effort to return the nation to an earlier, purer time -- an "original" time when words had their original meaning, a day before all those changes in law and society that so inconveniently occurred over the past 200 years or so. Scalia is conservative only in the sense that the political views he barely veils are considerably more consistent with those of the Republican Party than with those of the Democrats. But as a judge, Scalia does not seek to conserve anything, and he finds nothing congenial in what the historical process -- the traditions and customs that have evolved in the United States -- has given us; far from wanting to conserve these traditions and customs, he wants to return to a time before they developed. This is not conservatism in any meaningful sense, though its proper name is unclear.
In fact, both Posner and Scalia are rationalists: Posner with his eye on the ways legal decisions can shape a better future and Scalia with his eye on a day in the past before society and language and meanings and values had not changed from their "original" state. Both are impatient with letting society, tradition, custom, and law develop over time: Posner because he considers such forces as barriers to sound reasoning, Scalia because they have just turned out all the wrong ways. Both, in short, favor action over passivity in the face of the way things are now. They just want to go in different directions.
The Posner-Scalia debate, therefore, confronts us with a problem (beyond the question of who we find most persuasive): are today's so-called conservatives really "conservative," or are they Oakeshottian rationalists who resemble their supposed "liberal" opponents in their desire to interfere with the way things are? In fact, the debate makes us wonder what a conservative really is. Is it conservative to call for a freer market and a legal system that aims to foster that freedom and encourage the pursuit of economic betterment? Is it conservative to reject what our society and its law has become in favor of older forms of social order and some supposedly ascertainable "original" meaning in legal words? Or is it conservative to cling stubbornly to what we have and where we are, only accepting gradual change and solutions that, while not ideal, are "best in the circumstances"?
Posner's critique of Scalia is worth reading not only because it calls into question a jurisprudential view that gets more respect that it deserves, but also because it raises these questions about what it means to be a conservative. For if a republic, as Machiavelli, Harrington, and Jefferson told us, must periodically return to its first principles in order to guard it against the degeneration all political societies inevitably face, a proper sense of what conservation of those principles requires must go along with a consideration of what those principles actually are.