Last night I was talking with a charming gentleman, a constitutional originalist, who was convinced that originalism was dead. After all, he pointed out, the law schools are solidly left-wing; the legal profession hovers between Marx and Foucault; anybody on the right will have to get used to seeing the constitution get slowly hacked to pieces at the hands of judges.
In a sense, I think the charming gentleman was suffering the same problem that Apollo noted in Bruce Bartlett. Bartlett seems to assume that, since the trend from 2004 to 2006 was bad for Republicans, the trend will continue, making 2008 a catastrophe. The originalist seems to assume that, since the courts and the law schools are majority left-wing, they will therefore shape the future.
Orwell wrote a good (if problematic in other areas, which aren’t important right now) essay about the topic once:
Power worship blurs political judgement because it leads, almost unavoidably, to the belief that present trends will continue. Whoever is winning at the moment will always seem to be invincible. If the Japanese have conquered south Asia, then they will keep south Asia for ever, if the Germans have captured Tobruk, they will infallibly capture Cairo; if the Russians are in Berlin, it will not be long before they are in London: and so on. This habit of mind leads also to the belief that things will happen more quickly, completely, and catastrophically than they ever do in practice. The rise and fall of empires, the disappearance of cultures and religions, are expected to happen with earthquake suddenness, and processes which have barely started are talked about as though they were already at an end. Burnham’s writings are full of apocalyptic visions. Nations, governments, classes and social systems are constantly described as expanding, contracting, decaying, dissolving, toppling, crashing, crumbling, crystallizing, and, in general, behaving in an unstable and melodramatic way. The slowness of historical change, the fact that any epoch always contains a great deal of the last epoch, is never sufficiently allowed for. Such a manner of thinking is bound to lead to mistaken prophecies, because, even when it gauges the direction of events rightly, it will miscalculate their tempo. Within the space of five years Burnham foretold the domination of Russia by Germany and of Germany by Russia. In each case he was obeying the same instinct: the instinct to bow down before the conqueror of the moment, to accept the existing trend as irreversible. With this in mind one can criticize his theory in a broader way.
The future is determined not by the majority, but by the the most effective minority. Most Russians were not Bolsheviks, most Americans were not New Dealers, but Russia became the USSR, and America became a welfare state.
To get back to Bartlett, more Americans are Independents rather than Republicans or Democrats; nevertheless, the next American president will almost certainly be either a Republican or a Democrat. Which party wins will come down to which one campaigns better. Given that both have knacks for snatching defeat from the jaws of victory (Ford, Mondale, Dukakis, Dole, Kerry), we can’t tell yet who’s going to win. Pessimism is premature in the 2008 campaign; it shouldn’t even be a glimmer in a pundit’s eye.
To get back to the charming gentleman, it is relatively unimportant what a large majority of law schools do; what is vitally important is what the tiny minority of law school grads who wind up on the federal bench believe. If enough of them back originalism, law schools will be forced to teach it—otherwise they’ll be irrelevant.
Posted by Hubbard in Philosophy, Audacity of Hype