Like John Roberts before him, Samuel Alito has already provoked some skepticism in conservative circles as he does the confirmation tango.  Both Bush nominees have made a point of avoiding any full—throated defense of the right's pet jurisprudential theories.  The hearsay testimony of Senator Arlen Specter suggests that Judge Alito may have gone beyond reticence about those theories and into the realm of heresy.  Senator Specter emerged from a meeting with Judge Alito and proclaimed: 

I start with his statement that he believes there is a right to privacy under the liberty clause of the United States Constitution. And he believes that the right applied to singles as well as married under the interpretation of Griswold v. Connecticut. And he says that he accepts Griswold v. Connecticut as good law.

This proclamation set conservative web sites abuzz with speculation.  Privacy rights in general and Griswold in particular are closely linked to the doctrine of substantive due process which is the right's preeminent constitutional boogeyman.  Many conservatives believe that to accept Griswold as good law is to accept that the Constitution is infinitely elastic and that the courts have a roving commission to use that elasticity in the cause of improving society.

The judge Senator Specter described doesn't sound like a reliable proponent of the idea that the text of the Constitution understood in the context of the times from which it emerged is sufficient to answer every constitutional question that comes before the Supreme Court.  This idea is the core of what I call 'textualist—originalism.'  It is closely associated with Judge Robert Bork, as well as Antonin Scalia and Clarence Thomas.  Many conservatives cling to it the way Marxists cling to the labor theory of value.  For those who do, Judge Alito's apparent apostasy is a very serious matter.  

Lighten up guys.  Maybe neither Chief Justice Roberts nor Judge Alito is willing to defend textualist—originalism for the best conceivable reason.  Smart people don't usually like to beat dead horses.  I have great respect for the conservative trinity of Bork, Scalia and Thomas, but textualist—originalism is a horse that has been dead for quite some time.  History and President Bush have assigned to Chief Justice Roberts and Justice Alito the formidable task of moving conservative jurisprudence beyond textualist—originalism.  We can only hope that they are up to that task. 

I wrote about the inadequacies of textualist—originalism during the Miers detour.  My point then was that we need high—caliber justices to do the hard work of formulating and promoting better theories of judging, something the President may now have delivered.  Steven M. Warshawsky wrote a response to my piece which perfectly expressed the passionate commitment of orthodox conservatives to textualist—originalism.   It also illustrated their confusion.

Mr. Warshawshy argued that either judges understand their craft as a simple process of giving legal texts their plain meaning or they will all follow the Massachusetts Supreme Judicial Court into an orgy of catastrophic activism.  This is the fallacy of the excluded middle in its purest form.  Fortunately, the universe of jurisprudential possibilities is much broader than orthodox conservatives imagine.  If it were not, the orgy of activism would be inevitable. 

Orthodox conservatives correctly perceive that the rule of law is meaningless unless the law has a determinate meaning.  If the law means whatever certain judges want it to mean then we have a government of men in black instead of the government of laws we are supposed to have. Textualist—originalism is the orthodox prescription for avoiding this result. Unfortunately it isn't an effective prescription. Text and history leave far too many constitutional questions unanswered.  If conservatives want to roll back the leftist tide in constitutional law they are going to need more powerful tools than are dreamed of in textualist—originalist jurisprudence of Robert Bork.  

Painful as it is, we have to give leftist legal scholarship its due. The leftist critique of the idea that text and history are sufficient to resolve hard cases has largely been successful. That critique has drawn on linguistic philosophy and a host of practical examples to make the point that no rule can define the scope of its own application. The Constitution does not speak for itself with sufficient specificity to answer many of the questions that come before the Supreme Court. 

The brutal truth is that textualist—originalism has been thoroughly obsolete at least since Brown v. Board of Education. Nobody is willing to repudiate Brown but, despite some heroic efforts there has never been an adequate textualist—originalist justification of it. An honest textualist—originalist would have to conclude that segregation is one of the many things the Constitution doesn't address.  The members of Congress who wrote the 14th Amendment plainly did not believe that it forbade the separation of the races.  They operated a segregated school system themselves.  Nothing in the text says that separation entails unconstitutional inequality. To get the result in Brown one has to concede that the 14th Amendment sets out broad principles and that we know better what those principles require in our age than did the people who wrote the Amendment.  Game, set, and match. 

Orthodox conservatives aren't willing to stop playing merely because the game is over. Their response to the argument that text and history don't answer many questions that come before the Court is that many questions don't have answers, and that's OK.  If the text doesn't speak clearly courts must leave matters where they find them.  Mr. Justice Scalia makes this argument in a recent book review he published in the November edition of First Things (not yet available online). 

The constitutional 'questions' that [Steven D. Smith, author of Law's Quandary] says conventional legal discourse does not really answer — whether states can criminalize abortion, whether faith—based initiatives are permissible, whether public universities can adopt affirmative—action programs, whether a state military college can admit only men, whether there is a right to assisted suicide — are all questions that only arise if text is distorted or text is regarded as having an evolving meaning.....

If we should read English as English, Smith bemoans, 'these questions would seemingly all have received the same answer:  'No law on that one.'' 

That is precisely the answer they should have received:  The federal Constitution says nothing on these subjects which are therefore left to be governed by state law.

The only flaw in this argument is that it has no connection whatever to reality.  Neither Justice Scalia nor anyone else is willing to accept as many unanswered questions as textualist—originalism, honestly applied, would leave us with. That was the lesson of Brown.  Judges don't disagree about what the law says just because some are distorting the text while others are defending it.  There really are difficult questions that judges can only answer correctly by bringing judgment to bear.  Some Judges have better judgment than others.

The one thing regarding the Constitution that everyone accepts in practice is that it means much more than it plainly says. Conservative judges who claim that they interpret the Constitution to mean no more than what it says are either striking a pose or deceiving themselves.  The requirements of constitutional principle are much broader and more demanding that the plain language of the constitutional text.  There is a great deal of controversy about exactly what those principles require.  Everybody behaves, however, as if they require something much more than the constitutional text alone. There is no shortage of cases in which conservatives boldly go where text and history can't plausibly take them. 

Is campaign finance regulation unconstitutional?  I can't find the freedom of political contribution clause in the Constitution.  Are racial preferences a violation of the Equal Protection clause?  Nowhere does the Constitution state that skin color never constitutes a distinction that may justify, or even require, disparate treatment according to race. Can the Supreme Court properly take action when a state court tries to subvert a federal election by changing the rules of the electoral game to the benefit of one candidate after the election is over?  Apparently I stayed in bed the morning that the constitutional right to be free of judicially—sponsored election fraud came up in Con Law.  Is the Commerce Clause clear enough to provide any judicially—enforceable limits on congressional power and, if so, what are they?  Can the courts properly stop elected officials from using the power of eminent domain to take private property when the officials have determined that doing so will serve the public interest? 

There is a right answer to each of the constitutional questions outlined above, and to many others. In each case, however, finding the right answer is not a simple matter of reading what the Constitution says and putting it into effect.  Getting the right answer on campaign finance regulation, for example, entails interpreting the First Amendment broadly because principle demands it.  Political debate is vital to the health of the constitutional order and campaign finance regulation is a small but important surrender to the totalitarian impulse.  The Court should have arrested the steady march toward comprehensive regulation of political debate by striking down all campaign finance regulation long ago.  Principle demands that result, text and history do not. 

Most of the passion with which conservatives cling to the wreckage of textualist—originalism is grounded in outrage the Court provoked by manipulating privacy doctrine to usurp the legislative prerogative of setting society's moral course.  Roe v. Wade leaps to mind and behind Roe stands Griswold v. Connecticut.  Roe is certainly an outrage and Griswold is dubious at best, but the standard conservative criticism of those cases is far from compelling which is an important part of the reason we are still saddled with them. 

Conservatives often complain that Roe and Griswold found new rights not supported by the text and history of the Constitution.  There is truth lurking behind this complaint, but it is wrong in important respects.  Justice Douglas's absurdly overwritten opinion in Griswold with all its penumbras and emanations made a valid point. 

The language of the Bill of Rights is not and was not intended to be narrowly restrictive. The 9th Amendment has more or less dropped out of constitutional debate but it is worth remembering: 

'The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.' 

The first ten Amendments to the Constitution, fairly read, strongly suggest that we have a general right to be left alone, unless the government has a good reason to mess with us.  Even though 'substantive due process' is an oxymoron, the Civil War Amendments, fairly read, strongly suggest that the states are bound to respect this right.  (Privileges and immunities anyone?)  Call this a right to privacy if you will.  This reasoning resonates deeply with the strong libertarian elements in American culture.  It is thoroughly conservative and conservatives are foolish to squander their credibility fighting it. 

It isn't hard to imagine hypothetical cases that would lead most conservatives to clamor for judicial enforcement of non—textual privacy rights. Suppose a state legislature concocted a scheme to regulate the time, place, manner, and frequency, of conjugal relations involving any resident, or residents of the state.  This would be stupid and politically suicidal, but it would also, in my view, be unconstitutional.  If state action is stupid, pointless, and intrusive enough the courts should be able to cry foul. Griswold (which struck down a Connecticut law that outlawed the sale and use of contraceptives) comes close to my hypothetical.  There is a non—trivial argument that the Court reached the right result there. There is no reason to hyperventilate about a Supreme Court nominee who isn't willing to take heavy casualties in a frontal assault on Griswold. 

The Supreme Court's privacy doctrine doesn't go wrong because it is too expansive in defining rights.  It goes wrong, and catastrophically so, because it is much too narrow in its definition of what constitutes a constitutionally sufficient reason for states to interfere with our privacy. The state is always entitled to interfere with our right to privacy, or with any other right we may have, if we are, in the reasonable judgment of the legislature, doing something wrong.  Freedom of speech, for example, does not protect obscenity, defamation, perjury, fraud, incitement to riot or any other clearly immoral speech.  There can never be a right to do wrong. 

Most state legislatures concluded before Roe that abortion was a wrong they should discourage. This moral conclusion was the basis for all the laws that Roe struck down.  The Court had neither grounds for disputing this conclusion nor authority to do so.  Judges are empowered to say what the law is.  They are neither empowered nor qualified to decide on the boundaries of right and wrong.  Moral judgments belong to the legislature. 

The dispute over privacy doctrine isn't about theories of judging.  No such theory validates Roe v. Wade.  There is no jurisprudential straightjacket that can prevent judges from going wrong when their judgment fails.  That is what orthodox conservatives want textualist—originalism to be.  They are destined to suffer a long series of disappointments. 

Conservatives can't protect the Constitution from interpretive abuse by insisting that constitutional interpretation involves nothing more than reading comprehension; at some level everyone knows that isn't so. Conservative judges can't be persuasive if they are busy maintaining an elaborate pretense about what they really do for a living.  Ultimately the only power judges have is the power to persuade. Conservative judges need to move beyond textualist—originalism so they can exercise that power more effectively. 

Republican presidents chose all but two members of the Supreme Court and still the left wins there much more than it loses.  This is a problem and textualist—originalism is not an effective solution.  It is instead part of the problem.  Conservatives need something better from their judges and scholars than yet another rousing chorus of 'give me that old time jurisprudence.'  More of the same will translate to more futility and frustration.   

We're better than they are, we're smarter than they are and it's about time we started showing it.  That is task that Chief Justice Roberts and Justice Alito have cut out for them.  

Good luck gentlemen.

J. Peter Mulhern is a lawyer in the Washington, DC area.