THE BLOG
08/24/2009 05:12 am ET Updated May 25, 2011

Do Conservatives Follow the Framers -- or the French?

Who declared that the country's legal system is "poorly organized if a judge enjoys the dangerous privilege of interpreting the law or adding to its provisions?" Was it Senator Lindsey Graham last week, questioning Sonia Sotomayor about her supposed "judicial activism?" Or perhaps Justice Antonin Scalia in one of his biting dissents? Actually, no. It was French lawyer Nicolas Bergasse, in a 1789 report to France's National Assembly recommending that judges' power be reduced.

And what document said that "the courts may not directly or indirectly take any part in the exercise of the legislative power," adding that "judicial functions ... will always remain separate from the executive functions?" Was it a proposal by President Bush's Department of Justice? Or perhaps a bill submitted by congressional Republicans to prevent "legislating from the bench?" Actually, no. It was France's famous Law on Judicial Organization, enacted at the height of the French Revolution.

It is no coincidence that American conservatives now sound like French revolutionaries when they talk about legal issues. To a startling degree, they have embraced the historic continental-European skepticism of judges and courts over the last generation. Like eighteenth- and nineteenth-century Europeans, today's American conservatives wax eloquent about the primacy of the legislature and the importance of sticking to the statutory text. Also like those Europeans, conservatives argue that judges should be highly restrained in their decisions, ever-vigilant against enacting their own policy preferences into law. As the 2008 Republican platform put it, in words that could have been uttered by Robespierre, "judicial activism is a grave threat to the rule of law because unaccountable federal judges are usurping democracy ... and imposing their personal opinions upon the public."

The great irony here is that conservatives have embraced the continental-European model over its traditional rival, the Anglo-American system of the common law. Under the common law, judges were free to consider the consequences of their decisions and to try to realize important societal values. Legal rules evolved over time as judges followed wise precedents and revised or rejected flawed ones. Statutes were respected but, where possible, interpreted so that they did not conflict with the courts' decisions. As Blackstone, greatest of the common law thinkers, wrote, judges are "the depositories of the laws; the living oracles," responsible for deciding cases with "liberality of sentiment" so that "manifestly absurd or unjust results" are avoided. Try to imagine Justice Scalia saying that.

Why, then, have conservatives turned their backs on the system that served England and America well for centuries? Aren't they supposed to value tradition and dislike radical new ideas (especially French ones)?

Conservatives' typical answer is that the common law method is inapplicable because of America's written Constitution, which supposedly requires judges to defer to the Framers' intent. But statutes, which are also in writing and reflective of the people's will, have always been a key feature of the Anglo-American legal landscape. Judges somehow managed to interpret and apply them for hundreds of years without being branded as would-be legislators in black robes. The Constitution's sweeping generalities -- "due process," "equal protection," "the freedom of speech" -- are also evocative of Blackstone's "liberty of Englishmen," which common law courts diligently defended. Constitutional interpretation is simply not as unique as conservatives think.

A more plausible explanation for conservatives' current devotion to textualism and originalism is that they think these techniques produce preferable outcomes. Crucially, conservatives' rejection of the common law method was not consummated until the 1980s, when President Reagan announced his commitment to "strict constructionist" judges and the Department of Justice ordered its attorneys to focus on "original intent" arguments. The 1980s, of course, followed several decades of progressive Supreme Court decisions, many of which, in classic common law fashion, examined precedents and appealed to enduring American values. It was only in the wake of these decisions that conservatives decided it was time to redefine what it means to be a judge.

But more significant than why conservatives now reject the common law method is the stark fact that they do so. As University of Chicago Law Professor David Strauss has noted, "the common law is the most distinctive feature of our legal system and of the English system from which it is descended." Yet without almost anyone noticing, a major legal movement and one of America's two great political parties have disowned the historic heart of Anglo-American law. Even more shockingly, they have adopted in its place the continental-European critique of judges who consult non-textual sources and take policy considerations into account in their decisions.

Conservatives, of course, are entitled to embrace whatever model of judging they want. But the rest of us should be aware of the breathtaking reversal that their model would represent if implemented. Especially with a Supreme Court nomination pending, we should remember that for centuries "judicial activists" were not villains but rather the heroes of the common law.

A version of this piece was published in the Philadelphia Inquirer.