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Why We Shouldn’t Trust An Originalist Supreme Court To Secure Our Liberties


Mark Tushnet is at it again. You may recall this Harvard Law professor from his 2016 effervescence over the death of Justice Antonin Scalia, when he urged the Left to launch an aggressive legal campaign to treat conservatives like defeated Nazis.

The Left had won the culture war, and it was time to step on some throats, because, as he put it, “taking a hard line seemed to work reasonably well in Germany and Japan after 1945.” This was not some random internet idiot who wanted conservatives to be treated like conquered enemies, but a prominent professor at America’s ostensibly second-best law school.

This premature gloating was self-defeating, as it contributed to the concern for the federal courts that drove many otherwise reluctant conservatives to vote for Donald Trump. They believed that they had no choice but to gamble on Trump, given that the Left saw them as monsters to be crushed with all the power the government could bring to bear. And their bet has paid off, with the appointment of Neil Gorsuch to the Court, followed by Justice Anthony Kennedy’s retirement and Trump’s nomination of the excellent Judge Brett Kavanaugh to replace him.

With an imminent originalist majority on the court, it is legal conservatives who are poised to go on offense, abandoning the defensive crouch that they had adopted on issues like religious liberty and abortion. But the collapse of Tushnet’s dream of an all-conquering Leftist judiciary holds warnings for conservatives and especially for Christians.

First, we must not be seduced by the promise of power. Abandoning a defensive posture does not mean abusing the Constitution to secure our policy goals. For example, while many state-imposed occupational licensing requirements are terrible as a matter of policy, I am skeptical of claims that they are unconstitutional. Conservatives must not start clamoring for lawless right-wing judicial activism.

In contrast, even in apparent defeat, Tushnet has doubled-down on a radical reinterpretation of the Constitution, suggesting, for instance, that affirmative action and redistributive taxation are constitutionally required. He has also added his voice to a fresh round of pieces insisting that the Democrats should pack the courts at the next opportunity. That they are suggesting this when Republicans actually have the power to do so is telling — it reveals that they know themselves to be the aggressors in the judicial wars. Leftists are comfortable promoting further escalation, even when the Right has political power, because they know conservatives will not strike first and pack the courts themselves.

This is because the conservative constitutional vision is one of restrained power and the rule of law. But left-wing judicial activists struggle to understand this in their lust for power (a desire they claim to be justified by all the good they intend). A living constitutionalist like Tushnet is, as Gandalf said of Sauron, “very wise, and he weighs all things to a nicety in the scales of his malice. But the only measure that he knows is desire, desire for power; and so he judges all hearts. Into his heart the thought will not enter that any will refuse it.”

That judges should rule according to the law and the Constitution, instead of seizing power for their own private preferences, is almost incomprehensible to someone like Tushnet, who still gnaws at the stale ends of failed schemes of Leftist triumphalism.

An originalist Supreme Court can and should roll back the worst of Leftist jurisprudence and secure space for us to exercise our freedoms. But for Christian conservatives this is not victory — it is merely lifting the legal siege that threatened to overwhelm us.  Our wins last term were important but defensive: protecting the right of pro-lifers to refuse to advertise abortions and the right of religious nonconformists like Jack Phillips to decline to promote and participate in celebrating same-sex marriage ceremonies.

We may hope for further successes, for instance, that the courts will provide robust protection for Christian institutions and organizations — churches, schools, charities, hospitals, campus ministries and so on — to retain their Christian identities without being punished. Just as the Apostle Paul invoked his rights as a Roman citizen, so American Christians should boldly defend our rights under the Constitution.

And as citizens in a democratic constitutional republic, we should advocate for a government that administers justice and respects the rule of law. Our best legal minds are undoubtedly preparing legal strategies for the new and improved judicial landscape. Onward, Christian litigators!

But though legal success can preserve our rights and liberties within American culture and politics, it will not win the culture for us. The conservative task of self-restraint may be aided by recognizing how little our victories depend upon the courts. As a pair of conservative law professors put it, “the Supreme Court cannot save a degraded culture, nor can it degrade a virtuous one — not too much in either direction, at least.

Conservatives seeking lasting change are better advised to attend to our failures in the broader culture than to prepare the way for our Supreme Court savior. Otherwise, we are likely to be sorely disappointed.” We may become culturally irrelevant even if the Court vigorously defends our rights. For example, the Supreme Court can protect the rights of a Christian student group at a state university, but it cannot provide the group with members.

Victory will not come through politics or litigation. For Christians, there is no enduring political triumph, for the kingdoms of this world, including the United States, are under judgment. We must reject any sort of Christian triumphalism that trumpets a theologically-unsound idea of America as a covenant Christian nation.

Thus, for Christians, abandoning the defensive crouch is not primarily about legal success, but about renewing our commitment to using our constitutional liberties to proclaim the gospel in word and deed.

We should be confident in our message, because it provides hope and healing that the people of our culture need. For millions of Americans, materialism and sexual liberation have not brought the happiness and contentment they promised. Late-stage liberalism, consisting of consumerism and sexual indulgence backstopped by government welfare programs, is collapsing around the world. This selfish ideology has produced loneliness and despair, of which the most prominent symptoms are the rising death toll of suicides and overdoses.

In this spiritual wasteland the goals of the church have remained the same: souls saved and lives transformed by grace. That is our mission, accomplished by grace, truth and charity, kindness and mercy. I am preaching to myself as much as anyone when I write that we too often neglect these.

Politically and culturally, we should count successes in terms of lives protected from the violence of abortion, of marriages and families preserved from dissolution and of children from abandonment. Our triumphs are in establishing communities that offer real meaning and fellowship. We will need to do this even more as our legal and policy goals are achieved.

The legal victory of an originalist Supreme Court returning control over abortion policies to state governments will require us to redouble our cultural efforts. Political victories that provide legal protection to developing human persons will result from, and be sustained by, a culture that respects and values human life. This requires that we assist expectant mothers in crisis and help single parents and couples struggling to care for their children. It demands that we foster and adopt the orphaned and abandoned.

Many of us are skeptical of the efficacy of big government programs meant to help the poor and the infirm. We must then stand in the gap to provide for those in need, not just by cutting checks, but with personal kindness and humility (after all, a poor or working class Christian may be much more spiritually mature than the well-to-do congregant who offers material assistance). Likewise, the criticisms many of us make against identity politics should be concomitant with individual and corporate efforts to seek real racial reconciliation and peace, which come from recognizing everyone as a child of God.

Confidence that our First Amendment rights will be respected should move Christians to reach out to a nation in need while strengthening the bonds within the church. Ministries of mercy, such as caring for the ill, elderly and imprisoned, will coincide with the development of deep commitments among believers to Christian community.

We should not seek the power to dominate, but the freedom to preach truth and develop communities of love. Government has a God-given responsibility to protect the innocent and ensure a just order, but it must also reckon with human fallibility. It is the church, not the state, that can best nurture families, provide compassion and community, and care for the souls of men and women. This is the challenge set before us.

Let us try to match legal victories with cultural victories that will rebuild a damaged culture. What is needed is not vengeance but a cultural and spiritual Marshall Plan.