By Jay Schweikert, J.D. 2011

Whoever has seen The Ten Commandments would be hard pressed to forget the scene where Charlton Heston’s Moses spurns the seductions of Pharaoh’s court and famously retorts back: “Man shall be ruled by law – not by the will of other men.” Whose mind doesn’t proudly nod in support of this brave stand against injustice? Whose heart doesn’t swell when Moses frees the Hebrews and unleashes the wrath of God upon the tyranny of Egypt? More importantly, however, who, upon hearing the story of Exodus, thinks to himself, “Well, Moses must have been a Republican”? The correct answer to this last question is, of course, no one. Yet that is not the answer that modern political discourse would suggest.

Liberal democracies uphold the rule of law as a basic principle of free government because it prohibits the state from exercising power in conflict with the free deliberation of its citizens. There is, of course, honest disagreement about exactly what constitutes respect for the law, especially from the judiciary. Some contend that the rule of law and the Constitution demand faithful and objective adherence by judges to the text of laws. Others claim that law will always be ambiguous and that judges show respect for the law by interpreting it in light of its history, purposes, and policy consequences. But whichever side of the issue one falls on, the question itself will never be meaningfully addressed as long as it arises in the mindless squables of Red vs. Blue politics.

American political labels are tricky enough to begin with – after all, those who adhere with firm consistency to the principles of limited government may be unsure whether to call themselves liberals, conservatives, or neither. However, even taking Republican “conservatism” and Democratic “liberalism” for what they are, we need to acknowledge that the current debate over the judiciary became part of this conflict by sheer dumb luck. It just so happens that, in the outcomes of several high profile cases in the past fifty years, the philosophy of judicial objectivity coincided with the desired “conservative” outcomes. Roe v. Wade, Griswold v. Connecticut, and District of Columbia v. Heller spring to mind as examples (cases respectively dealing with abortion, privacy, and gun ownership). These cases have probably generated conservative support for judicial objectivity, and the judges who issued the “conservative-friendly” rulings were often conservatives themselves. But this does not justify the belief that there is any necessary connection between textualism and the American right, except on purely political grounds.

Both Democrats and Republicans are responsible for propagating misconceptions about this question. How often have we heard those on the left decry “conservative judges” for opposing “social progress” or for wanting to “impose conservative ideology” on the populace? Is it really so hard to imagine someone who believes that the law should say one thing but actually says another? By non-political standards, it should not be strange to find individuals who support abortion rights just as firmly as they disagree with the constitutional reasoning in Roe v. Wade. In politics, however, such a position is almost unthinkable. It may be the case that many textualist judges lean conservative, and there are likely many who fail to practice the consistency they preach. But this is no indictment of the judicial philosophy itself and certainly not an indication that the philosophy is “conservative” by nature. Remember that Justice Oliver Wendell Holmes, an early textualist, was a fierce critic of Lochner v. New York, which produced what was considered a conservative result. It is just as possible for liberals to uphold conservative laws as it is for conservatives to uphold liberal laws (and liberals and conservatives are equally capable of abusing the law for their own purposes).

On the other side of the divide, many social conservatives have been far too willing to embrace judges as allies in some kind of cultural battleground. A pro-life advocate can respect a judge’s opposition to Roe v. Wade, but not because of the particular outcome reached. I suspect that if states started passing laws legalizing abortion in all circumstances, many (not all) pro-life advocates would suddenly find themselves less supportive of neutral judges who respect the decisions of the legislature. This example is not meant to imply any broad criticism of social conservatism. I simply mean to remind conservatives that the philosophical justification for their view toward the judiciary needs to exist independently of any “favorable” results that such a view may have produced. The argument for or against textualism is not and cannot be a question of political results. The role of the judiciary is a question pertaining to the basic functioning of a democratic republic and how the rule of law is best respected in a free society. Those who choose a judicial philosophy because of expected political outcomes are in for a rude awakening when the political actors and objectives change.

The argument about how judges should interpret the law needs to occur, but it must occur outside of Red vs. Blue political conflict if any meaningful answers are to be reached. Democrats and Republicans who include their views on the judiciary in a list of bullet points like any other political position do a disservice to their own beliefs, whatever they are, and they reinforce false conceptions of the law in the minds of citizens. Politicizing the judiciary, whether by politicians, voters, or law professors, will destroy any attempt to have a real debate on these questions. It will only substitute rhetoric for reason and ensure that, in the end, elections matter more than truth. Moses might have been a textualist, but there is no reason to think he was a Republican as well. We need to stop buying into a system that pretends like one implies the other.