A few weeks ago I speculated that the lack of Republican solidarity on SCOTUS in the matters of what we call ‘culture wars’ might not be a matter of ideological inconstance, but that the side taken by the liberals is actually the right side. Harvard law professor Adrian Vermeule, whose proposal for a new constitutional philosophy of interpretation I incidentally critiqued a few weeks ago, disagrees. He prefers a more nuanced interpretation:
There is a third theory that has more explanatory force: The justices are indeed acting faithfully to law, but not by enforcing the written Constitution and laws. Rather what they enforce is our real, unwritten constitution, a set of understandings that underlies and shapes our interpretation of the law. Justices interpret open-ended provisions (“due process of law”) in light of this unwritten constitution. And because the background small-c constitution embodies a liberal order, it is unsurprising that their decisions do as well.
What are the principles underlying our unwritten constitution? It is best understood as a sociopolitical order that privileges a particular set of commitments held passionately by educated urban professionals and what Joel Kotkin and Fred Siegel have termed “gentry liberals.” Among these, and relevant to the current term, are ensuring a high rate of immigration, encouraged by policies against full enforcement of the law, and protecting sexual expression and liberty, including contraception, abortion and unconstrained expression of sexual preference and gender identity. These beliefs are not spelled out explicitly in law, yet they exert a gravitational force that powerfully influences the justices’ interpretations.
These unwritten norms allow the expression of dissenting views, but only as dissenting views. They thus exert the most force on justices who are otherwise least convinced of the conservative position in a given case. Hence the most conservative justices rarely defect. But in critical cases, involving central commitments of the unwritten constitution, it is highly likely that one or more of the middling conservative justices will do so. [WaPo]
Unfortunately, I find Professor Vermeule’s informal definition of liberal unsatisfying. He defines it as a collection of positions, which is profoundly incorrect, as it leads to dated definitions as society comes to decisions regarding issues once considered as pivotal in defining the difference between liberals and conservatives. Shall we leave the Democrats saddled with their advocacy for slavery?
No.
I find it far more preferable to define liberals and conservatives by inclinations. For my part, I operate under the observations that conservatives see value in how things were done in the past, and find the changes possible, even proposed, for the future to be responsible for the possible destruction of those things they value.
Liberals, I’ve noted, look to the past, they see injustice, they become horrified, and ask how those injustices can be be corrected by changes to the future. Modern liberals may make improper observations and propose outré solutions, but mistakes are always being made and corrected, sometimes before hand, sometimes after. That is the nature of the game. For the conservative who thinks horror has a place at the mere mention of the word liberal, I will remind them that most, if not all, of the Founding Fathers were, by this definition, liberals. I might, in the light of moral progress, disagree with some of the positions of President Washington, but as a non-denominational liberal myself, I think that he and I would get along OK, if uncomfortably.
Now, how this might play into Professor Vermeule’s philosophy, I don’t know. The fact that the Constitution was written by liberals might have something to do with it.
But defining liberals by a set of current positions seems like a mug’s game to me.
