The dispute over originalism is fundamentally an American dispute. The question as it is usually framed deals with what the authors and the people who ratified the United States Constitution understood a constitutional provision to mean. This debate usually takes place at the level of text and history. However, in one of the foundational documents of originalism, Robert Bork’s 1971 Indiana Law Journal essay, the concerns motivating originalism are set forth with admirable clarity. Bork saw the Warren Court as imposing its values in an unmediated, unprincipled way, which for him was a crisis for the Court’s legitimacy and authority. His formulation of originalism, while idiosyncratic, was ultimately an attempt to mediate and regulate the enforcement of values by the courts. In this project, Bork finds an unusual antecedent: Carl Schmitt.
No doubt some adherents of originalism will be surprised to learn that they follow in the footsteps of a jurist as infamous as Schmitt. However, the genealogy of originalism is more than a historical curiosity. The debate over originalism that has been raging, more or less intensely, since Adrian Vermeule’s essay in The Atlantic, has not focused adequately on the problems that originalism is supposed to solve. Still less has it focused on the means by which originalism solves the problems. A consideration of the problems and the means by which those problems are supposed to be solved reveals the deeply Schmittian roots of originalism. And it is in Carl Schmitt’s thought that the pitfalls of originalism are revealed.
Carl Schmitt’s 1960 essay, The Tyranny of Values, updated with a lengthy introduction in the edition of 1967, is a work of great descriptive power. He argues that values, as a “positivistic ersatz for the metaphysical,” must constantly be made valid. Values are not real: they are realized through enforcement. This leads inevitably to constant enmity, made all too terrible by modern scientific weapons. At the end of his essay, Schmitt observes that value requires mediation to avoid the war of all against all promised by the automatic and immediate enforcement of value. In a commonwealth, it is for the legislator to provide this mediation through laws. Schmitt, of course, recognizes the supreme difficulty of this task. But at the very conclusion of the essay, Schmitt observes: “If the legislator here abdicates, then there is no ersatz for him, but rather at best stopgaps, which more or less swiftly become the sacrifices of their thankless role.”
The Tyranny of Values has recently been translated by Samuel Garrett Zeitlin for Telos Press. Zeitlin also wrote an extremely illuminating essay, published in 2020 in Modern Intellectual History, situating The Tyranny of Values in its specific historical and biographical context. The essay is well worth reading in full, not least for an understanding of Schmitt’s unsavory motivations in articulating his account. Zeitlin emphasizes that Schmitt’s theoretical project, situated in a broader political project, is to demonstrate that “as a matter of philosophic grammar, values aren’t real; as a matter of philosophic history, values are ersatz metaphysics and stress subjective worldviews in a way that leads to interminable conflict and violence.” What Schmitt proposes, therefore, is what Blake Smith, reviewing the translation in American Affairs, has called a liberalism for losers, a turning away in horror from the “interminable conflict and violence” promised by the logic of value.
It is important to pause here and consider the question of value in this theory: the definition of something that does not exist. Zeitlin provides a summary of Schmitt’s concept: “Value is thus figured, by both Schmitt and Schmitt’s Heidegger, as a term which attempts to substitute for virtue, dignity, piety and sanctity while trying to save human responsibility within a broader secularization narrative of the history of philosophy and ethical language.” Schmitt makes the distinction in these terms: “Virtues one exercises; norms one applies; commands are fulfilled; but values are set down and imposed.” Schmitt finds antecedents for his view not only in Heidegger but Nicolai Hartmann and Max Weber.
In 1971, a few years after Schmitt reissued The Tyranny of Values in 1967, Robert Bork wrote an influential essay in the Indiana Law Journal: Neutral Principles and Some First Amendment Problems. There is certainly no evidence in the 1971 essay that Bork was familiar with Schmitt’s 1967 edition of The Tyranny of Values. (Not being a Bork archivist, I do not know whether he was familiar with it at all.) Yet the problem of the automatic and unmediated enforcement of values was very much on Bork’s mind in the essay. Echoing Carl Schmitt, Bork argued that the imposition of values by a court necessarily departed from that neutrality.
Bork identified a problem: is a neutral judiciary simply one value among many? Bork avoided the problem by arguing that the neutrality of judicial decision making was an essential part of a court’s legitimacy and authority. Yet Schmitt’s reading of the logic of values suggests that Bork did not escape the problem with this maneuver. One cannot enter and exit from the logic of values at will. The highest value, in this case the legitimacy of the judiciary or the Madisonian system of government, Schmitt warns, has “only its place-value in the value system.” It is subject necessarily to revaluation and negation and annihilation, the same as any other value. Bork’s neutral judiciary does not escape from the value system, no matter what it implicates.
Schmitt too cautioned against judges enforcing values, and mostly along the same lines as Bork. “A jurist, who allows himself to become the immediate realizer of value, ought to know what he is doing,” Schmitt warned. The war of all against all promised by the endless process of valuing and devaluing, of paying the highest price for the highest value, and annihilating non-values is present if submerged in Bork’s dread of constant civil war threatened by the Supreme Court’s enforcement of value. Bork accepted, like Carl Schmitt, that judges who use judicial decrees to enforce values become trapped in the logic of values. They become subject to the tyranny of values.
It is worth noting here, as Blake Smith does, that Schmitt’s assumption in The Tyranny of Values (shared by Bork) has a significant Hobbesian component. Just as Hobbes posits a war of all against all in the state of nature—“without a common Power to keep them all in awe,” as Hobbes says in the thirteenth chapter of Leviathan—Schmitt holds that the logic of values leads to a war of all against all. And not merely in the active process of imposing values, but in the spaces between the imposition of values. War for Hobbes “consisteth not in Battell onely, or the act of fighting; but in a tract of time, wherein the Will to contend by Battell is sufficiently known.” One may justly ask whether or not Bork accepts this fundamental premise in his theory of originalism. To the extent that he acknowledges the logic of values and attempts to find a means of mediating the enforcement of values, he seems to. This constitutes a significant problem for originalists today, whether they know it or not, given the ethical and metaphysical commitments in Hobbes’s view.
It is to escape value-logic and the tyranny of values, therefore, that Bork ultimately lights upon what has become called originalism. In a lengthy passage, Bork argued that the Court’s decision in Griswold v. Connecticut was an unprincipled imposition of values by the Supreme Court. Indeed, Bork argued that Griswold’s antecedents and its progeny were all equally unprincipled. It is ultimately after rejecting the imposition of values, especially under the banner of the Due Process or Equal Protection Clauses, that Bork comes to his formulation of originalism. The precise contours of Bork’s definition are not too relevant. What is relevant is his stated objective: to find a neutral principle by which the enforcement of values might be mediated or regulated.
Bork attempted to locate in the text of the Constitution and the intent of the framers, however that may be determined, the positive enactments that mediate the enforcement of value. Where the Constitution is silent, Bork believes it is for the legislators of the present to provide laws, in Schmitt’s words, “to define the mediation via calculable and enforceable rules and to hinder the terror of the immediate and automatic enforcement of value.” Yet Bork’s entire argument takes place in a space where the legislator has abdicated.
He readily conceded that the Warren Court had gotten into the business of the immediate enforcement of value. This presented a crisis of legitimacy and authority for the Court, but the solution was simply for judges to adopt neutral principles that would mediate the enforcement of values through the history of the Constitution. At no point did the legislator mandate this in a definitive way. In other words, Bork presented an argument for originalism that hinges on what, for Carl Schmitt, was the weakest point: the ersatz for the legislator, which is ultimately a stopgap consumed by the role.
More than this, Bork failed to realize that his attempt to accept the logic of values in some limited cases but to except other cases from the logic of values was doomed to fail. All he could do was posit that some value—the Madisonian constitution, the legitimacy of the judiciary—was the highest value for someone or for something. Bork’s values are valid at his point of attack on the Warren Court. Bork’s successors likewise must contend with the logic of values. They too posit that some value is the highest value for something or for someone, but even these highest values are subject to revaluation, devaluation, and annihilation.
Certainly there is a tendency to want to evade Bork’s formulation of originalism. It is spiky and idiosyncratic, not least in its rigorous majoritarianism. Yet the fundamental problem Bork attempted to solve remains a problem for originalists: how can one restrain judges from imposing their values (or the values of a majority of them) on the rest of the citizens. His fundamental supposition remains a fundamental supposition for originalists: when a judge imposes her values on the rest of the citizens, she is not neutral and therefore she forfeits her legitimacy. The originalists of today remain mired, therefore, in the logic of values and the tyranny of values. Like Bork, they cannot escape from the inevitable conclusions of value logic by appealing to a highest value—such values are the highest only within the system of values.
The way out is not by accepting the nihilism and positivism of value logic, but to return to the principles of the classical legal tradition. There is no need for an ersatz metaphysics if one has metaphysics. In the Quaestio de Diversitate Legum (ST I-II q.91), part of what some call the
“Treatise on Law,” Aquinas identifies a human law, a natural law, a divine law, and an eternal law. Aquinas also identifies the order and hierarchy of these sources of law. These sources of law provide the jurist with his essential connection with the metaphysical order. Through these sources of law and their interrelationship, we find an essential connection between objective truth and power, between the good in the realm of contemplation and the law as the principle of human behavior. We find here too the necessary basis to reject the positivistic assumptions that underlie the entirety of value logic itself.
