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Book Review by Bradley C.S. Watson

A Plea for Posit ivismTe Language of Law and the Foundations of American Constitutionalism, by Gary L. McDowell.

Cambridge University Press, 428 pages, $29.85

America has found its thomas hobbesfor the 21st century. InTe Languageof Law and the Foundations of AmericanConstitutionalism, Gary McDowell offers one ofthe most signicant scholarly arguments everwritten for legal positivism as a guarantor ofpolitical liberty, recurring time and again toHobbes in this magisterial survey of constitu-tional originalism. It was Hobbes who broughtlaw down from the clouds and showed it to bethe plain, intelligible will of the sovereignul-timately, the sovereign people. It is to this pop-ular will that contemporary jurists must look ifthey are honestly to interpret the Constitution,writes McDowell, and in so doing to preservepolitical liberty in the face of its archenemy:arbitrariness. Justice is the interest of the prop-erly constituted majority.

A professor at the University of Rich-

monds Jepson School of Leadership Studies,McDowell begins by reminding the reader ofthe remarkable thing that happened nearly aquarter of a century ago when the U.S. Sen-ate refused to conrm Robert Borks nomi-nation to the Supreme Court. Bork was re- jected not on account of his qualications,ability, or integrity, but because of his judicialphilosophya version of the philosophy oforiginalism that had been at the core of theAnglo-American legal tradition for centuries.Nothing less than a new theory of judging

was being put forth by Borks detractors. In-deed, prior to the 1980s, there were few if anyopen arguments against originalism, whichwas taken to be thesine qua non of legal in-terpretation.

o engage in reasoning about what the lawrequires is rst and foremost to determinemeaning, and meaning in turn depends onwhat words meant when they were promulgat-ed, not on what judgeswhose constitutionalauthority derives from the very instrumentthey purport to construemight wish themto mean. McDowells central claim is undoubt-edly correct: Recourse to original intention John Marshalls most sacred rule of interpreta-tionis the true mainstream owing from thewell-established legal and constitutional tradi-tions of the nation. For Marshall, determiningthe mind of the Convention was critical to

constitutional interpretation, and to constrain-ing judges to their proper role.McDowell ably identies the spurious sci-

entism from which modern American legaleducation was born, and the fanciful and ex-pansive conceptions of judicial power that grewfrom it. Christopher Columbus Langdellscase method at Harvard Law School, Wood-row Wilsons Darwinian science of politics,and Edward S. Corwins melding of the twoat Princeton each contributed to the idea that judges are key actors in the ceaseless, evolu-

tionary unfolding of law away from the found-ers purportedly primitive intentions.

By contrast, the founders original-ism , in McDowells account, was bornof early modern political thought, par-

ticularly that of Hobbes. It was Hobbes whosupplanted the great tradition of legal inter-pretation in the West, and rested it on the lowbut solid foundations of positivism. He allowsus to conceive of fundamental or higher lawthat is not divine, and whose meaning is there-fore not shrouded in the byzantine meander-ings of the medieval schoolmen, or of common-law jurists such as Sir Edward Coke. In claim-ing that law is the command of the sovereignrather than the dictate of wisdom or right rea-son, Hobbes cleared the eld for governmentby the people, no longer bound by the chains

of monkish ignorance and superstition. Writ-ten law comes to supplant claims about God,nature, and custom, and legal interpretationis properly subordinated to law creation andpromulgationand to the entirely reasonableview that words used in legal documents areintended to convey certain xed ideas from themind of the writer to that of the reader.

McDowell claims that John Locke merelytamed Hobbes (without fundamentally mod-ifying his teaching) by drawing a necessaryline between the sovereign and the govern-

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ment, thereby ensuring that the people nevercede their sovereignty in the process of enter-ing into the social contract. According toMcDowell, Locke, like Hobbes, denied thatthere are innate principles of right and wrong,and both drew out the necessary conclusionfrom William of Ockhams nominalism: Wecan know only the particulars, not the essenc-

es, or natures and purposes of things. Humanbeings are thus left free to create their ownmeanings, and to express these meanings inlaw. Te power of man to live according tohis own will is McDowells understanding ofLockean freedom, and one that he endorses.

he author traces these develop-ments in the idea of law with impres-sive attention to detail. But the book is

not an easy read. It does not proceed strictlychronologically, and it alternates rapidly be-tween political theory and jurisprudence, so-cial contract and originalism, philosopher and judge, politician and scholar. Major guresand lesser lights each take their turn. And yetMcDowell sometimes glosses over importantmatters. For example, like many conservatives,he is quick to suggest that the shift away fromtext and intention toward a living constitutionis not a matter of ideology, and that theresnot much difference between the liberal ju-dicial activism of today and the conservativeactivism of a century or more ago. But con-servativesthough never perfect or perfectlyconsistent in matters of constitutional inter-pretationnever conceived jurisprudence asan adjunct of the powerful philosophy of his-tory that has undergirded progressive consti-

tutionalism since its birth in the late 19th cen-tury. Although they might have differed overoriginal meanings, conservatives never sug-gested that such meanings might be ignoredwhen hard cases demanded an accommoda-tion with evolutionary social and politicalforces. In this sense, conservatives have beenfar less consistent, and far less dangerous tothe founders Constitution, than liberals.

Following William Blackstone, McDowellsdefault position is that law without equity isbetter than equity without law. But try tellingthat to anyone on the receiving end of a civilservants officiousness and you will get manycommon-sense reasons why the strict applica-tion of positive law is, to put it mildly, problem-atic. Tat justice must be tempered by mercya mercy arising from proper reasoning aboutthe nature of the wholeseems as essentialan element of the workings of a constitutionalrepublic as it does of Christian faith. And de-mand for such proper reasoning is as likely tobe stimulated by a love of truth as mercy. Oneneed not embrace what McDowell abhors

moralistic judging rooted in a so-called livingconstitutionin order to claim that constitu-

tionalism requires moral reasoning. It is hard todisagree with McDowells claim that it is politi-cally prudent to distrust the moral impulses of judges. But it is not politically prudent to denymoral realism in the name of prudence.

Must constitutional originalismreally exclude any higher law not

committed to the parchment of thedocument? Te books epigraph is a quota-tion from Justice Benjamin Curtiss stingingdissent in Dred Scott (1857): when a strictinterpretation of the Constitutionis aban-doned, and the theoretical opinions of indi-viduals are allowed to control its meaning, weno longer have a Constitution; we are under agovernment of individual men. In McDow-ells telling, Curtis here echoes Joseph Story,who echoes John Marshall, who echoes JohnLocke, who echoesTomas Hobbes. ButCurtis was reading the same Constitution asChief Justice aney, from whose judgmenthe dissented. It was a Constitution with lan-guage that explicitly affirmed certain legalexpectations of slaveholders and certain po-litical rights of slave states. For Curtisas forAbraham Lincoln, who quoted his judgmentapprovingly and who gets nary an honorablemention in McDowells long booksome-thing underlay the Constitution that was notthe express positive command of the sovereign.For who is to be sovereign, and why, is a mat-ter that of necessity goes beyond the positivelaw. John Marshalls most sacred rule mustitself be rightly interpreted, if we are to knowthe difference between judicial interpretationand judicial activism.

For McDowell, the higher law underwhich we live comes from below: from thepeoples reection and choice. But that itshould come from below is a conclusion of ahigher law from above, which McDowell isat pains to deny. We are the products of thathigher law insofar as it creates us as beingswith natures politically equal, one amongstanother, without subordination or subjection.And we have access to the facts of nature be-cause we are also created with minds that areuniquely suited to reason about such matters.As creatures of our species and rank, we canknow, as a matter of law, that not everything ispermittednot even those things that are notpositively forbidden. Tat dogs are not menis something rational beings know, howevernominal and provisional the claim might be,according to the epistemologists. But to ordi-nary men, the claim is not provisional at all.

A republican constitutions very nature andreason embodies higher law and the idea thatsome things are wrong simply; they are notwrong because they have been proscribed bythe positive law of the sovereign people. Indeedthey would be wrong as a matter of higher law

in spite of a positive law that authorizes themAs humans we are, in fact, to do good and avoeviland our natures can tell us somethinabout the meaning of that injunction.

As Aristotle taught, and the AmericanFounders knew, decent regimes exist on a spetrum between the poles of equality and meriTe basis of governmental legitimacy might be

found in Locke, but the institutions and modesof operation of government are also undestood in Aristotelian terms, and even in termof a certain kind of Humean, or common-lawtraditionalism. Why, after all, must majorities be constituted in very particular ways acording to the founders? Why must habits ovenerationrather than acts of willbe socultivated in their constitutionalism? It is because popular sovereignty, simply, is neithethe foundation nor the true end and purposeof government. AsTe Federalist famouslyclaimed, Justice is the end of government. is the end of civil society. It ever has been anever will be pursued until it be obtained, ountil liberty be lost in the pursuit. One cantherefore say that metaphysics and customalways inform and moderate the founderconstitutional understandings, and that theyare key to a true originalism. Because of thfounders antecedent understanding of justicHoly Scripture, Aristotle, and the commonlawamong other thingsseem tting andproper matters of judicial inquiry, if the judgis to determine the mind of the Convention.

W hether political liberty or ableak nihilism grows out of Ockhams nominalism is no small mater. McDowells reading of Hobbesian andLockean individualism leads him to argue fothe unremitting legal positivism of the majoritwherein certainty trumps the claims of bothuniversal justice and tradition. Tis is an argument unlikely to nd favor with broad swathof conservative thought. Te picture of origi-nalism, positivism, and liberty that McDowepaints is essentially a stark modernist portraiof lovers entwined, albeit with baroque detaaround the edges. Te idea that the peoplenever cede their sovereignty over anythingexcept the idea of ceding their sovereigntyperhaps not as friendly to political liberty aMcDowell argues. It is unlikely that a propeconstitutionalist jurisprudence can ever embrace Tomas Hobbes as fully as he suggests.

Bradley C. S. Watson holds the Philip McKenna Chair in American and Western Plitical Tought at Saint Vincent College, whehe is also co-director of the Center for Poland Economic Tought. He is the author oLiving Constitution, Dying Faith: Progressivism and the New Science of Jurisprudenc(ISI Books).

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