October 18, 2017

Constitutional Originalism or the “living Constitution”: Gorsuch’s nomination and a tale of two law profs

Originalism Living Constitution

The Gorsuch nomination, pitting Originalism against a “living Constitution,” is a fight for America’s soul — so pay attention because this is important!

Judge Neil Gorsuch’s nomination has brought to the fore the seemingly dry argument about two competing theories of Constitutional interpretation, Originalism and the “living Constitution.” Gorsuch himself is an “originalist” while the Democrat party arrayed against him puts its faith in a living Constitution.

Two recent essays both discuss Originalism and “the living Constitution”: Prof. Glenn Reynolds’ “Who the People?” in USA Today, and Prof. Mary Bilder’s “The Constitution Doesn’t Mean What You Think It Means” in the Boston Globe. Dry though the argument may seem to those not already steeped in the law, Progressives have turned this into the single most important issue facing our nation, so pay attention to this one.

Why is this so important? Because whichever of those two theories, Originalism or living Constitution, wins goes to the heart of how we will be governed in the future. It will determine whether we will be a Republic under a government with limited powers that the people control through the ballot box — as the people who drafted the Constitution envisioned — or whether we will be a nation pushed ever further left by non-democratic, extra-constitutional means, morphing to the point that the Constitution is meaningless and our Republic gutted in a brave, new, progressive, socialist nation.

The competing theories are easily explained. “Originalism” is a wholly apolitical theory holding that one interprets the Constitution as it was understood when passed. This is not inherently conservative or liberal, Republican or Democrat. It is merely adherence to a framework that allows for the people of the nation — not judges — to amend it. 

Automatic adherence to Originalism explains why, for more than a century, there were no politics attendant upon confirming Supreme Court justices or judges holding other positions in the federal system. Judges were not ideologues, using their position to create new laws or Constitutional rights; they were just judges, applying the Constitution and the law as written to the facts before them. Only by the 1980s, after several decades of decisions from Progressive activist judges, did legal scholars become aware that there was a problem, at which time they coined the word “Originalism” to apply to the traditional judicial approach to the Constitution.

In an act of pure projection, progressives have falsely labeled Originalism as “conservative.” As Prof. Reynolds says in USA Today:

[C]ourts have a duty to enforce the Constitution as written, whether those results further the aims of a political majority or of a minority. When courts do so, even if they strike down laws passed by the majority, they are not engaging in judicial activism. They are simply doing their jobs. . . .

Arrayed against Originalism is the “living Constitution.” The very term is polish on excrement, much akin to “Democratic People’s Republic of [stick in the name of your preferred police state / dictatorship here].” Just as there is nothing Democratic or Republican about a socialist dictatorship of any stripe, there is nothing constitutional to be found in the theory of a “living Constitution.” The term is used to give an air of legitimacy to the wholly illegitimate.

Under the progressive socialist’s theory of a “living Constitution,” un-elected judges are free to ignore the original intent of those who crafted and voted in a referendum to pass our Constitution and take unto themselves the power unilaterally to proclaim new law or otherwise amend the Constitution upon their whim. The Constitution itself spells out, in Article 5, the only two means by which the Constitution could be amended . . . and neither of those include amendment by judicial fiat. The incredible genius of the system our Founders crafted, limiting the power of any one branch of government by a series of “checks and balances,” is lost through this judicial usurpation of power at the expense America’s citizens.

So how does Prof. Mary Bilder attempt to justify this obscene “living Constitution” assault on our republican form of government in her essay, “The Constitution Doesn’t Mean What You Think It Means“? To begin with, what a perfect title. At least there she’s not hiding the ball. The contents of her essay, though, are a different matter entirely. To be that honest would be to invite a second watering of the tree of liberty.

Contrary to the essay’s title, Bilder shies away from providing actual examples showing the “living Constitution” in action. Those who pay attention to the news, though, can readily supply as a backdrop to the essay multiple Obama-era examples of the living Constitution at work.

You thought the Constitution was silent about abortion? Idiot! There is a penumbra in there that only Progressives can find.

You thought the 14th Amendment dealt with only the rights of blacks and minority citizens? Idiot! There was a right to gay marriage hiding in there all along that only Progressives could discern — and despite the fact that homosexuality was under legal censure throughout the US when the 14th Amendment was passed.

You thought the First Amendment was written to protect the conscience of the those practicing the Judeo-Christian religions? Idiot! Progressives have always known that those rights have to take second place to normalizing homosexuality. Now it is safe to drive Christians from the public square if they refuse to violate their conscience.

You thought that the entire format of the Constitution was created to limit the power of government? Idiot! Obamacare has shown us that our Constitution creates a government so strong and intrusive that it can fine every American for failing to purchase East India tea that comes with a British tax on it. Every American who fought in our Revolution would, I feel safe to say, be moved to violence at that thought.

Rather than expose the un-democratic creative writing and activism behind those decisions that apply the “living Constitution,” Bilder takes a different tack. She argues that Originalism is a theory of recent origin, an assertion that implicitly makes it equal to another recent theory, that of a “living Constitution.” With neither having a long pedigree, Bilder argues that the Progressives’ favorite should take precedence because, unbelievably, that’s what the Founders would have wanted.

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Of course, as is so typical for a Progressive argument, Bilder’s argument is a fraud by omission misleading those in her audience (probably most of them) unfamiliar with the Constitution’s creation and with the use to which American justices put the Constitution until well into the 20th century. It was only then that the Progressives, eschewing the amendment process, slowly and steadily started using the federal courts to rewrite the Constitution to suit their statist goals.

Bilder’s prestidigitation, which sees her purport to educate her readers even as she carefully hides important truths, begins with her utterly incoherent and historically flawed argument that our Founders were simply too busy and too pressured to actually mean what they said when they wrote the Constitution. Let’s take a look at history as per Ms. Bilder, with my comments are in brackets:

The framers thought they had a constitution, just one that wasn’t working. Congress asked the states to send delegates to “render the federal constitution” — the government under the Articles of Confederation — “adequate to the exigencies of Government & the preservation of the Union.” [True — but to add, the attendees decided that, to create a lasting government, they needed to exceed their mandate of amending the Articles of Confederation and start over from scratch]

Creating a workable organization of government was the task of that summer, not writing an intricate document. [That last bit is ridiculous. In the end, the drafters created the most complex form of government ever in existence, one with carefully crafted checks and balances. And they ensconced legal principals that did not take a lot of words to describe, most of them laden with centuries of English custom and history.]

Indeed, the most important source we have for the Constitution, James Madison’s “Notes of Debates in the Federal Convention of 1787,” shows that the fluid internal politics of the convention could easily have produced a much different government. In the future president’s notes, the delegates debated for weeks the structures we take for granted — a bicameral Congress with the states represented in one house and the population in the other. Madison did not want the states to be represented. He lost. He and members of the Virginia delegation were so annoyed about losing that they voted for an executive to serve on good behavior with no term limit. That proposal also lost.

Madison’s notes help us see that the framers were too busy writing the Constitution that would save the country to draft the type of airtight document that originalists perceive.

Let’s stop there for a moment, as you can no doubt see where Prof. Bilder is going with this. Her narrative — it can’t honestly be referred to as logic — is that because our Founders met in committee and argued about our form of government during a chaotic period, that none of what our Founders wrote and what our people voted for in a series of state wide referendums through 1792 should be taken seriously. I don’t think that I have ever heard a more specious argument. In conclusion, Prof. Bilder writes:

From the moment the Constitution became visible in September 1787, its meaning was contested. [I am not aware of anyone contesting the “meaning” of the document. The provisions were certainly argued over in public, as The Federalist Papers and the Anti-Federalist Papers attest, along with a host of pamphlets. And indeed, it soon became apparent that the Constitution would not pass unless specific individual rights were included — and thus the creation of the Bill of Rights. But whether the words meant what they said, whether the words created a penumbra or right to gay marriage or the power to force people to buy tea . . . no. That was never contested, Prof. Bilder’s unsupported assertion aside.]

In a letter widely published in newspapers alongside the text, convention delegates expressed hope that the Constitution would “promote the lasting welfare of that country so dear to us all, and secure her freedom and happiness.” The preamble reminds of us of this same forward-looking wish: “promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.” [Prof. Bilder is suggesting here that, because our Framers and those who voted for the Constitution could not be sure that their work would be effective — and they couldn’t, because they were in uncharted waters, creating a new government in a world ruled by the iron hand of kings and potentates — that somehow delegitimizes the Constitution today. That is absurd.]

Originalism requires that the Constitution be a type of document literally beyond the capacity and purpose of the framers. In his hearings, Gorsuch insisted that judges must look “backward . . . in the sense of looking at historic facts.” But when we look backward at the historic facts of the creation of the Constitution, all we see is a document written under the most trying of circumstances — to ensure a future. [Emphasis added.]

That sentence, “Originalism requires that the Constitution be a type of document literally beyond the capacity and purpose of the framers,” is the central conceit of the entire progressive “living Constitution” movement. The Framers were by and large modest men fully aware of their own shortcomings and the incredible burden of crafting a wholly new type of government. Cognizant of the possibility that what they created might need to be altered, they included two means of doing so democratically and without the aid of unelected judges in Article 5 of the Constitution. Just as we can be incredibly suspect of the recent Ninth Circuit activist decision stripping President Trump of his Constitutional and statutory power to craft an immigration pause since the Circuit court never addressed the applicable law, so we can be suspect of Prof. Bilder’s arguments which never mention Article 5 and the lawful means we have to amend the Constitution.

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But the above is only half of both the “living Constitution argument” and half the history. Prof. Bilder alludes to this in her article when she notes that “Originalism” is a legal theory of Constitutional interpretation that has only been around since 1980’s. She implies that this is some new innovation. The truth is that, while “Originalism” is a neologism, the underlying concept has been around since the Constitution’s inception.

For the better part of the first 150 years of our nation’s existence, no one question the fact that it was the duty of justices to apply the Constitution as written in 1792. Yes, there was the occasional one-off where Justice’s seemed to deviate from this principle, resulting in the Supreme Court’s accretion of power to declare Constitutional law or, in the most Dred-ful of decisions, setting off the Civil War.

What is important, though, is that no one during those first 150 years, drunk or sober, argued as the Progressives do today that Justices had the inherent power to amend the Constitution and declare it to have a constantly changing meaning unrelated to what it meant in 1792. Indeed, that is why, for the first 150 years, Congress and the American people repeated amended the Constitution in accordance with Article 5. It’s was the People’s job, not the judiciary’s to change the government’s structure or the People’s inherent rights.

The reality is that our Founders could not envision, in 1792, the rise of the socialist ideologies of which Progressivism is part and parcel. When the Founders crafted Article III of our Constitution, they were completely silent about the federal judiciary’s powers beyond jurisdictional issues — the types of cases the court could hear. Our current understanding of the federal court’s function — the right to review laws and to pronounce by fiat authoritative interpretations of Constitutional — reflects powers that the Supreme Court justices themselves created out of whole cloth in the years after the Constitution was passed.

Alexander Hamilton opined in Federalist No. 78, arguing in favor of passage of our Constitution, that the judiciary would be the “least dangerous branch of government.” He had that completely wrong. Our Founders, in their silence in Article III, failed to grasp the danger that the judiciary posed to the Constitution and our Republican system of government once the Progressives politicized it. The judiciary has, under influence of the progressive left over the past century, become the most dangerous branch of government.

The iconic leader of the Progressive movement at its inception in America was Woodrow Wilson (may he roast in hell). He argued that the Constitution was unworkable because government is a “living thing” that cannot function with “checks and balances.” This argument was a direct assault on our Constitutional form of government, and it’s one that the Progressive left has embraced ever since. Only recently, though, has the make-up of the federal judiciary placed this entirely unconstitutional notion on steroids. That is, until the Obama administration, the Progressives’ sole vehicle for changing America was to use the Courts one step at a time to sidestep the voting box and our Constitutional safeguards.

Thanks, however, to a new generation of activist judges (e.g., Judge Derrick Watson, the entire 9th Circuit, or the panting, throbbing Justice Kennedy and his Obergefell romance novel), the Progressives have with increasing frequency made a mockery of the Constitution using the “living Constitution” theory — and adding insult to injury, they have claimed moral superiority for doing so. Nothing could be further from the truth. Anyone who supports the theory of a living Constitution is either an idiot who blindly follows whatever the Progressives say or, if he fully understands the implications underlying the living Constitution theory and still supports it, then he is evil and needs to be driven from the public square.

When Prof. Bild claims that “Originalism” is a recent theory, she is only partially correct. The neologism “Originalism” is new, as is the fact that judges and scholars have built a body of scholarly literature around it. What she isn’t telling you, though, is that the neologism became necessary only to distinguish what was once ordinary and accepted from entirely new theories the Founders never foresaw. Thus, originalist interpretations of laws and the respective nation’s Constitutional documents was the norm in both British and American courts for centuries before the French Revolution, Karl Marx, and the rise of Progressive politics in America created an entirely new paradigm.

Under this new paradigm, Progressives for the past one hundred years have changed the courts from a tool that interprets the law as intended and written into the mightiest weapon that Progressives could use to change American society. Originalism is nothing more than a restatement of historical court norms made necessary by the progressive canard of a “living Constitution.”

As the fight over Neil Gorsuch’s confirmation illustrates, Progressives fully understand that their real power lies, not in politics, but in the judiciary. It is to be hoped that those Americans who value our Constitutional republic and the freedoms it guards can be brought to understand that this fight — the fight over the Supreme Court — is the one that will shape America’s future. So I reiterate what I said in the beginning of this post: Pay attention. This matters.

About Bookworm 528 Articles
Bookworm came late to conservativism but embraced it with passion. She's been blogging since 2004 about anything that captures her fancy -- and that's usually politics. Her blog's motto is "Conservatives deal with facts and reach conclusions; liberals have conclusions and sell them as facts."

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