Originalism is Ron Paul’s Undoing. Will It Also Be Ours?

Last week Ron Paul won yet another straw poll, this time at the Republican Leadership Conference in New Orleans. He is reported as having said, “I’ve never been as optimistic as now” about his chances of winning the Presidency in 2012. Early in May I explained in this blog post why I will not vote for him: I disagree with his isolationist foreign policy, including his refusal to support our important ally, Israel. I also disagree with his positions on abortion and education.

Some who have responded to my post have argued that Ron Paul’s isolationism is proper because that was the Founding Fathers’ position on foreign policy. Assuming that is true, while an isolationist foreign policy may have been proper in the context of the eighteenth century, today, in a world of ICBMs that might be carrying nukes, isolationism is not adequate for the protection of the United States. Isolationism vs. neoconservative nation-building is a false alternative. There is a proper foreign policy which consists of pursuing our national self-interest, a foreign policy that rejects isolationism on the one hand, and neoconservative nation-building on the other.

This week I read another critique of Ron Paul, one that helped me to identify the deeper error behind some of Paul’s political positions. David Kopel, in this post on The Volokh Conspiracy, observed that those politicians, including Paul, who have signed the “2012 Pro-Life Citizen’s Pledge” are actually pledging to appoint judges who would, because of their originalist leanings, overturn as unconstitutional the very anti-abortion legislation they were pledging to advance and sign into law. Kopel was disappointed by this, because Paul had seemed to him to be “scrupulous” about his originalism in the past. The example Kopel gave was that of Paul, who supports the right to own a gun, nonetheless voting against the Protection of Lawful Commerce in Arms Act on the grounds that “the law exceeded the federal power to regulate interstate commerce.”

I am not an originalist, so whether Paul scrupulously adheres to originalism is not important to me. It is, of course, disappointing when a politician appears to be compromising or abandoning his methodological principles in order to further a particlar substantive position. At the very least, something like this makes one wonder whether he can count on or predict that politician’s behavior at all. But here I don’t necessarily see the issue as Paul abandoning or contradicting an originalist position. Rather, I see both Paul’s action here, and his embracing of an isolationist foreign policy, as illustrations of the problems inherent in originalism itself.

In her article, Why Originalism Won’t Die – Common Mistakes in Competing Theories of Judicial Interpretation, Tara Smith explains that, while originalism seems to promise objectivity in the realm of Constitutional interpretation, this is an illusion. She identifies the most seemingly objective version of originalism – the “authors’ criteria view” – that we might fairly ascribe to Paul. On this view, “the concepts employed in our laws refer to what the law’s authors meant by the concepts in question, that is, what they took to be ‘cruel,’ ‘equal protection,’ etc.—rightly or wrongly.”

Paul, using this type of originalism, might argue that his two ostensibly contradictory positions on the commerce clause – one, his vote against the Protection of Lawful Commerce in Arms Act, the other his pledge to advance and sign into law a Pain-Capable Unborn Child Protection Act – can be reconciled. He could argue that, while the former did not fall within the criteria actually held by the Constitution’s Framers (the authors of the commerce clause), the latter does. (I leave it as an exercise for any lawyers who might be reading this to figure out the plausible arguments to be made here.) True, the authors of the commerce clause may have had wrong or self-contradictory criteria for determining what can be regulated pursuant to the commerce clause. In fact, I think the confusion about the commerce clause during the centuries since our country’s founding is testament to that. But, the originalist says, come hell or high water, it is the Framers’ criteria that we should apply.*

Similarly, while the Founding Fathers may have wrongly set isolationism, rather than an objectively identified national self-interest, as the criteria for a proper U.S. foreign policy, the originalist will insist that we adhere to whatever the Founders’ criteria happened to be. Hence Ron Paul’s rejection not only of nation-building, or of “exporting” democracy at gun-point, which I think he is right in rejecting, but also his categorical rejections of pre-emptive strikes, foreign aid, and trade embargoes (these last, he says, amount to acts of war).

I am not saying that Originalism will explain all of Paul’s errors. For example, there is very little real argument on his website in support of his anti-abortion stance, and this is a position I find untenable for reasons stated here. He also has taken the side of Hamas over Israel and is known to have associated with and tolerated conspiracy theorists and holocaust deniers.

I understand the appeal of Ron Paul to Tea Partiers and others who realize the immorality and danger of a government that grows ever bigger and more intrusive, and that spends well beyond its means. Paul seems to be the candidate who has the longest track record of supporting the drastic spending cuts and radical reforms in monetary policy that are necessary to get us back on the right track. And yes, these, too, are likely a product of Paul’s originalism. What we need, however, is not a candidate who accepts wholesale whatever our Founders, as great as they were, meant when they wrote and established the Constitution. Rather, we need a candidate who understands what policies are right for the United States – those that protect individual rights – and who will work either within the scope of the Constitution or, as might sometimes be necessary, to change the Constitution, in order to implement them.

*Note that, in addition to originalism committing one to sometimes applying incorrect or self-contradictory criteria, it also has the problem of sometimes forcing one to choose from among several conflicting but reasonable inferences as to what those criteria actually were, as well as their proper application to entities and events in today’s world.

[Update: After reading this post by Randy Barnett, I wonder whether the version of Originalism to which Ron Paul subscribes is nothing more sophisticated than what Barnett calls "channeling the framers" -- i.e., trying to determine how the framers themselves would have applied the meaning of the Constitution's language (determined via the "authors' criteria") to particular cases. I refer you to Barnett's post also because he discusses, and includes a link to, the latest contribution to the Originalist literature, a paper by Larry Solum.

Also, if you're interested in reading Tara Smith's critique of more sophisticated versions of Originalism, including Barnett's, you can find it here.]

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18 responses to “Originalism is Ron Paul’s Undoing. Will It Also Be Ours?

  1. The notion that the founders were “isolationists” (a term which is 20th century in origin) is a classic mis-read of the early republic–particularly Washington’s Farewell Address and Thomas Jefferson’s First Inaugural. Every time I see Paul discuss issues of foreign policy and pretend that he has the founders on his side as unassailable authorities I’m forced to conclude that his opponents must think he’s right, because they don’t even attempt to challenge his gross distortion of the historical record. The founders promoted unlimited (except in retaliation for foreign trade restrictions) free trade and engaged in world commerce–something the 20th century school of isolationism rejected emphatically (see Charles Beard). They also were perfectly willing to go to war to protect the republic’s citizens, its trade, and possibly form alliances of neutral powers to protect commerce in the Mediterranean and beyond during the Napoleonic wars. Only at one point did the Founders engage in the sort of autarkic enterprise true isolationism entails–when Jefferson embargoed all international trade in 1808–and that in an effort to avoid having to go to war (an effort that failed quite miserably). There is nothing in the first five administrations, which were headed up by veterans of the revolutionary war and/or constitutional ratification process, that indicates an adherence to anything resembling isolationism as that term is understood in its proper 20th century context. There is a firm adherence to unilateralism and a committment to balancing strict national interest with the general desire to see liberty and republicanism prosper elsewhere. The latter because it was generally believed such sister republics would be solid trading partners and allies in the event that Europe’s monarchies decided to try to squelch republicanism in the cradle. There is no originalism there. Besides, the constitution is quite neutral as to the proper foreign policy the republic ought to adopt, thus an “originalist” would actually have no answers at all as to what the proper course of action is. Paul, I posit, is instead merely resurrecting the isolationism of the late 1930s and all the disreputable baggage that went with it. Unfortunately, he’s dragging the founders into the mud to avoid properly identifying the actual intellectual roots of his position.

    • “The founders promoted unlimited (except in retaliation for foreign trade restrictions) free trade and engaged in world commerce–something the 20th century school of isolationism rejected emphatically (see Charles Beard).”

      My understanding of Paul is that he is in favor of unlimited free trade alright. In fact, he’s against trade embargoes and sanctions entirely and calls them an “act of war.” He said he voted against trade sanctions against Iran, who is developing nuclear weapons and said it wants to annihilate Israel (if not us)! I would think that, if a country is an enemy of the United States, then we would not want our citizens helping that enemy by giving them the benefit of our trade with them. But maybe that’s just me… The way I understand Paul is that he thinks our government should be isolationist, even though he believes private citizens should trade freely, all over the world, whenever they want.

      • Yes, my point was not that Paul doens’t support free trade, merely that isolationism as such–which is a 20th century school of thought, not really related to the founding fathers (who were willing to use trade as a weapon)–normally does. That may Paul’s only major divergeance, however, with pre-WWII isolationism. He certainly rejects the spirit and fact of the foreign policy pursued and outlined by every major founder I’m aware of from Washington, Hamilton, both Adams, Jefferson, Madison, Marshall, etc.

        • Thanks, Alexander, yes, that’s what I find so funny. That the issue of trade is his only major divergence from isolationism, and he manages to twist that into a sort of isolationism as well in the sense that he doesn’t thing government should interfere with it, no matter what, even if it means trading with those who mean to harm us.

          I’m glad I put “Assuming that’s true” in my piece, because, while I was skeptical as to whether Paul’s supporters’ claims were true (for instance, I heard that Jefferson read the Koran in order to learn more about Islamic pirates, in order to protect our trade routes), my public-school history education is deficient. Time to hit some history books!

          Again, thanks for your contributions here.

      • Tis nothing, just thought I’d make clear that Congressman Paul is way off on the founders. Jefferson read the Koran to have some better understanding of muslims in general, the Western image of “Musselmen” was very spotty at the time. But he didn’t really care that the Bashaw of Tripoli was a muslim, he was more concerned about the prospect of what he considered to be a great and burgeoning nation (the United States) having to ransom its citizens from second-rate thugs in Northern Africa. The whole saga with the pirates, which lasted off and on from 1783 to 1815, is fascinating to say the least.

        Also, thanks for the link to Dr. Smith’s article on originalism, I had not seen it before and I couldn’t stop reading it until it was finished. Thoroughly enjoyed it!

  2. Great piece, Ms. Peikoff! Could we really be heading to an election between Ron Paul and Barack Obama? This would be a wretched choice. Even the most cowardly mainstream Republican would be a better friend to Israel than Ron Paul would be. And anyone who sells out Israel’s interests will eventually sell out our own.

    If I have to choose between Obama and Paul I may have to conclude that there IS a God…and He hates us!

  3. Ed. Bonczyk II

    As usual, Dr. Peikoff, your presentation and argument have crushed my mistaken, undiscerning advocation of Congressman Paul and his lip sevice to Laisse-faire. Thank you. I did not realize how he has compartmentilized his economic thought as well as his ethical thought. His politics are [or atleast border on] the contradictory. A woman’s right to her body is a critical matter that he fails to recognize. Again, thank you. $

  4. James Madison, aware of the problematic nature of that clause, left office with his final statement being the veto of a bill to direct government budget surpluses to projects of internal improvement–roads and canals essentially. Madison himself though the government should do such things, but the point of his veto was to tell congree that such a power did not exist in the Constitution as it existed then (and exists now since there has been no amendment to the commerce clause in particular or Article One, Section Eight generally:

    3 March 1817
    ” ‘The power to regulate commerce among the several States’ can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such a commerce without a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.”

    “Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms ‘common defense and general welfare’ embracing every object and act within the purview of a legislative trust.”

    As I understand it, that is the very question Randy Barnett has framed for the courts to decide (he’s arguing one of the appellate cases). Does the government have a unlimited plenary power to do anything it wishes or not? And if not, then can the government seriously define non-action as commerce? I look forward to reading the opinions in these cases as they work up to the Supreme Court.

  5. Daniel

    I agree with Alexander that Ron Paul does not have the Founders on his side and no right to claim their support.

    But it’s also worth pointing out that this entire blog post uses “isolationism” as if it were a valid concept when, in fact, it is anything but.

    As to why, see this reference in the Ayn Rand Lexicon: http://bit.ly/bLmfKb

    • Thanks, Daniel. What do you think would be a better concept to use here? Ron Paul likes to describe his policy as “non-interventionist,” and I considered using it instead, but I don’t see this concept as encompassing some of his important foreign policy positions (e.g., his objection to the use of trade embargoes, as well as his objection to aiding an ally in a way that falls short of “intervening”).

    • I agree with Daniel (and Ayn Rand) that “isolationism” is an anti-concept. John McCain, in his usual manner of altruist preaching and ignoble opportunism, has thrown this smear word at other Republicans who have begun to doubt the whole “nation-building” disaster in Afghanistan.

      I’m not sure what to replace it with, though. We need a concise way to distinguish a rational foreign policy from left-liberal/neoconservative altruist intervention on the one hand, and from leftist/libertarian/paleoconservative pacifism on the other.

      • The only substitute I’ve been able to come up with so far, to denote Ron Paul’s foreign policy, is a metaphorical one: “Ostrichism” (burying head in sand…)

  6. Then who will you vote for? Is there a better canidate?

    • Luckily I don’t have to decide that yet. I think Gary Johnson would be better than Ron Paul, but in the S.C. debate he said “cost-benefit analysis” several times, making him sound like a total pragmatist. Truth is that Obama is such a disaster, and the GOP isn’t doing much in opposition, it seems, so voting for gridlock in 2012 may not be enough. We’ll see…

  7. No time to tarry, nit picking on supreme court rulings or even abortion rights or religion is a big mistake when choosing our next presidential leader. Some of these issues are VERY important, I agree but Ron Paul will lead us out of this economic crisis and get us out of these foreign wars. Whats more, he WILL OPEN THE DOORS after a century of statist policies. An open door will allow new ideas to flow into our branches of government.

    John Jay warned in Federalist No.4
    “[The] safety of the people of America against dangers from foreign force, depends not only on their forbearing to give just causes of war to other nations, but also on their placing and continuing themselves in such a situation as not to invite hostility or insult; for it need not be observed, that there are pretended as well as just causes of war.”

    The framers of the Constitution considered “observing good faith and justice toward all nations,” as a cornerstone of foreign policy. Today’s altruist and imperialist interventions in other countries have circumscribed the Constitution and allowed the military or the president virtual free reign over foreign policy as it pertains to acts of war, without the consent of Congress. This action is in direct violation of Constitution.

    James Madison knew that warfare, even incited from within the government, could be detrimental to the health of the republic, saying,
    “If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.”

    …and if Ron Paul looses the Rep nomination, we’ll wind up with a status-quo, milk-toast, hired by the highest corporate bidder of power or government who is willing to trade favor and bribes on any whim so long as he stays in favor. I like Gary Johnson too don’t get me wrong, but if all objective and republic loving and libertarian thinkers are not on the same page we will end up with a Mitt Romney or Barack Obama for another 4. And if you want to see our country on a fast track to disentigration, then I guess you have your own Gulch to move to.

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