Why conservatives are originalists

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It’s no secret why political conservatives are Amy Coney Barrett’s biggest champions. Barrett is a jurisprudential originalist, and most conservatives are originalists too.

The relationship between conservatism and originalism may be largely self-evident, but it’s worth considering what lies at the heart of both -isms to understand better what links conservatives to judges such as Barrett.

In his book The Conservative Mind, Russell Kirk defined six canons of conservative thought. What he outlined is much broader than a judicial conservatism, though two of the six can be taken as reasons why conservatives subscribe to originalism (and textualism too). The first is what Kirk calls “faith in prescription,” with the word “prescription” referring to all that our political forebears established. To have faith in prescription is to believe that what the founders did in creating the republic was good and is worthy of some allegiance.

The conservative faith in prescription grows out of a wariness for what Kirk calls “man’s anarchic impulse,” a characteristic of human nature. It’s why even self-governance requires restraint in the form of prescribed checks on that impulse, such as the mechanisms of government (think of the separation of powers) and the protection of individual rights. The Constitution prescribes those things.

Faith in prescription would also explain why conservatives speak so fondly of the prescription of the founders, who commanded a few extraordinary events in 1776 and 1787. When they declared independence and ratified a new Constitution, the founders set the nation on a course to become the freest that the world had ever seen. The originalist recognizes that course as something worthy of preservation.

The second conservative canon is this: a “recognition that change and reform are not identical, and that innovation is a devouring conflagration more often than it is a torch for progress.” For its application, this canon is best understood as motivating originalists to prevent the court from marshaling large-scale, society-altering changes. In several cases, the Supreme Court of the 20th century acted as a “devouring conflagration” with its creative jurisprudence, judicial whims, and the creation of new nonenumerated rights. That was not how the Constitution originally intended the high court to act.

Again, the originalist is motivated by protecting the prescribed and divided form of government. In Barrett’s words, an originalist is one who “comes to the [Constitution] and interprets it as it would have been understood by those at the time of its … ratification.” The reason for that approach is to ensure that “the law remains the law until it’s lawfully changed through democratic processes.”

Keeping the court in its prescribed place: That is the originalist’s motivation. It’s a traditional approach, but it’s also the most democratic. Liberal democracy advocates fail to see that.

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