Barnett shreds the Left.
Posted on 04/27/2011 1:23:13 PM PDT by stevelackner
Elbridge Gerry said to his colleagues in the First Congress in 1789, "The people of America can never be safe, if...[the federal government has] a right to exercise the power of giving constructions to the constitution different from the original instrument." Interpreting the Constitution according to the original meaning of the provisions therein is today labeled as the philosophy of originalism. It is the only logical and legitimate method of Constitutional interpretation.
Early American Constitutional scholar St. George Tucker wrote in 1803, "The advantages of a written constitution, considered as the original contract of society must immediately strike every reflecting mind; power, when undefined, soon becomes unlimited; and the disquisition of... social rights where there is no text to resort to, for their explanation, is a task equally above ordinary capacities" (emphasis added). The written Constitution of the United States is “the original contract” of American society. As another early American legal scholar William Rawle explained in “A View of the Constitution” in 1829: “It is not necessary that a constitution should be in writing; but the superior advantages of one reduced to writing over those which on traditionary information, or which are to be collected from the acts and proceedings of the government itself are great and manifest. A dependence on the latter is indeed destructive of one main object of a constitution, which to check and restrain governors. If the people can only refer to the acts and proceedings of the government to ascertain their own rights, it is obvious, that as every such act may introduce a new principle, there can be no stability in the government. The order of things is inverted; what ought to be inferior, is placed above that which should be the superior, and the legislature is enabled to alter the constitution at its pleasure.”
What Rawle describes as “inverted” is the current state of affairs, and it is precisely due to a lack of recognition that the Constitution is America's “original contract.” As Georgetown Law Professor Randy Barnett (who teaches both contracts and constitutional law) explains: “With a constitution, as with a contract, we look to the meaning established at the time of formation for the same reason: If either a constitution or a contract is reduced to writing and executed, where it speaks it establishes or 'locks in' a rule of law from that moment forward. Adopting any meaning contrary to the original meaning would be to contradict or change the meaning of the text and thereby undermine the value of writtenness itself. Writtenness ceases to perform its function if meaning can be changed in the absence of an equally written modification or amendment... Meaning must remain the same unless it is changed, and change requires the same degree of writtenness and formality as the original writing. A commitment to textualism, therefore, begets a commitment to original meaning unless this meaning is altered by a written amendment... Unlike a contract that can be changed by the parties, in the constitutional sphere, writtenness ceases to perform its function of constraining political actors if meaning can be changed by these actors in the absence of equally written modification or amendment whose ratification is outside their power.”
This is not a new argument. Supreme Court Chief Justice John Marshall wrote in Marbury v. Madison in 1803 (the case that formally established the role of judicial review on questions of Constitutionality), that federal "powers...are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained?" It is basic to contract law that the meaning of the document is that which was within the reasonable contemplation of the parties. Advocating other "methods" of interpretation (which carry the added danger of placing no limit on the judge's power to "interpret") undermines the very purpose for which the Constitution was written in the first place, and there can therefore be no greater abuse of that writing. One of a more State's rights persuasion might prefer to compare the Constitution to a treaty between sovereign nations, i.e. the States, rather than a contract, but the underlying principle in no way changes. The general rules of treaty interpretation are to look at the ordinary and plain meaning of the written words, then the context surrounding the adoption of the treaty or its individual provisions, and finally the treaties object and purpose. Though I have not yet used the word originalism, all of these methods demand only that the original meaning and context of the treaty be looked to. There is no reason that the Constitution should be treated differently than a contract or a treaty, or for that matter a statute or any other legal document, in its interpretation.
The Founding Fathers were very clear in their expectation that the Constitution would be interpreted in light of its original meaning. The "Father of the Constitution" James Madison wrote to M. L. Hurlbert in 1830 that "[a]s there are legal rules for interpreting laws, there must be analogous rules for interpreting constns. and among the obvious and just guides applicable to the Constn. of the U. S. may be mentioned-- 1. The evils & defects for curing which the Constitution was called for & introduced. 2. The comments prevailing at the time it was adopted. 3. The early, deliberate & continued practice under the Constitution, as preferable to constructions adapted on the spur of occasions, and subject to the vicissitudes of party or personal ascendencies." Thomas Jefferson wrote in a letter to William Johnson in 1823, "On every question of construction, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." These are but a couple of examples of what could be very many more such explicit quotations from the Founding Fathers on how the Constitution is to be interpreted. It is not difficult to prove the originalism of originalism by looking to the words of the Founding Fathers themselves.
Further, the legitimacy of the judiciary is seriously called into question when the courts in Constitutional cases strike down or uphold laws regardless of the original meaning of the Constitution. The Constitution is the fundamental law of our nation. Alexander Hamilton wrote in Federalist No. 78 in 1788 that "[a] constitution is in fact, and must be, regarded by the judges as a fundamental law." Those who believe in the rule of law, as opposed to the arbitrary rule of nine hotshot lawyers on the Supreme Court, must support originalism in Constitutional interpretation. Judges must treat the Constitution as law, and therefore must apply this law like others as originally understood. They should not be able to simply twist the fundamental law to meet a judicial policy preference. To allow this is to allow judges to do nothing more than act as legislators under the guise of applying Constitutional principles. This would be permitting a judicial usurpation of the legislative and policy role, rather than a judicial and legal one. This is especially dangerous given that there is virtually no check on the power of the Supreme Court. The only practical way to overturn a Supreme Court ruling that contradicts the Constitution's original meaning is to simply hope the Court eventually undoes its own wrongdoing, which is not a real check at all, or to pass a Constitutional Amendment, which the framers of the Constitution intentionally made difficult. The members of the Supreme Court when not faithfully interpreting and applying the Constitution stands as an unelected oligarchy trampling on our fundamental law. Alexander Hamilton made clear in Federalist No. 78 that "[i]t can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature... The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body." A black robe does not mean a license to subvert the legitimate will of the people and their representatives by overturning laws that do not violate the Constitution as originally understood, nor should it give anyone the power to allow laws to be upheld that should be seen as unconstitutional according to the original meaning of a provision in the Constitution.
Justice Benjamin Curtis explained the proper role of a judge in answering Constitutional questions in his dissenting opinion to the infamous ruling of the Supreme Court in Scott v. Sanford in 1857: “A practical construction, nearly contemporaneous with the adoption of the Constitution, and continued by repeated instances through a long series of years, may always influence, and in doubtful cases should determine, the judicial mind on a question of the interpretation of the Constitution.... To engraft on any instrument a substantive exception not found in it must be admitted to be a matter attended with great difficulty. And the difficulty increases with the importance of the instrument and the magnitude and complexity of the interests involved in its construction. To allow this to be done with the Constitution, upon reasons purely political, renders its judicial interpretation impossible -- because judicial tribunals, as such, cannot decide upon political considerations. Political reasons have not the requisite certainty to afford rules of juridical interpretation. They are different in different men. They are different in the same men at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men who, for the time being, have power to declare what the Constitution is according to their own views of what it ought to mean. When such a method of interpretation of the Constitution obtains, in place of a republican Government, with limited and defined powers, we have a Government which is merely an exponent of the will of Congress, or, what in my opinion would not be preferable, an exponent of the individual political opinions of the members of this court.” Once again, this is but one quote of many that can be provided that demonstrate and explain the original intention of the judiciary's role in Constitutional interpretation. Most of the modern Supreme Court and modern law professors seem to have forgotten this important message. They have abandoned an understanding regarding Constitutional interpretation that the Founding Fathers, and early American jurists and legal scholars thereafter, accepted as obvious. They fail to realize that the there is nothing at all that can limit judges from merely implementing their own policy preferences other than an adherence to original meaning regardless of whether the judge agrees with the policy outcome. Judge Robert Bork was right when he said in 1985 that "only by limiting themselves to the historic intentions underlying each clause of the Constitution can judges avoid becoming legislators, avoid enforcing their own moral predilections, and ensure that the Constitution is law." It is therefore past the time and more than critical that we work together to bring about a rebirth of Constitutional originalism, the only legitimate avenue of Constitutional interpretation, to our great country.
A common argument against originalism is that the Constitution must "live and breathe" (in the chambers of a courtroom) so that it can change and adapt in accordance with contemporary societal needs. But the framers of the Constitution understood the need for change, and provided for it. The mechanism for changing the Constitution is provided within the Constitution itself. Article 5 of the Constitution provides for the process of bringing about an Amendment to the Constitution. When the judiciary issues rulings, however, that have no basis in the original meaning of the Constitution, they have circumvented the Amendment process and therefore violated the Constitution itself. It is not a matter of supporting a "living Constitution" as opposed to a dead one, but rather an enduring Constitution as opposed to an illegitimate one. George Washington said in his Farewell Address in 1796, "The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all." That includes judges and politicians.
Some might counter that it is too difficult to await Constitutional Amendments, that the Constitutional Amendment process is just too much of an obstacle to necessary changes in its meaning. But this is how the authors and ratifiers of the Constitution intended it. They did not want a Constitution subject to the whims of the times. The point of the Constitution was to enshrine principles that would last throughout the ages, rather than be subject to arbitrary changes of those in power. Charles Pinckney said at the South Carolina Ratifying Convention in 1788 that "[w]e are to reflect that this Constitution is not framed to answer temporary purposes. We hope it will last for ages--that it will be the perpetual protector of our rights and properties." The framers knew that it is possible that "there shall come a Pharoah that knows not Joseph and his sons." They therefore created a Constitution to limit those in power. They very wisely also made it and wanted it difficult to change. "It would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights... [O]ur Constitution has accordingly fixed the limits to which, and no further, our confidence may go... In questions of powers, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution," wrote Thomas Jefferson in the Kentucky Resolutions of 1798. Supreme Court opinions that constantly and consistently undermine the original meaning of the Constitution violate this important principle. That some would allow our confidence to be placed in nine unelected lawyers on the Supreme Court not matter how they rule violates the very essence and purpose of our founding legal document. As Supreme Court Justice Joseph Story wrote in his "Commentaries on the Constitution": "Let us never forget, that our constitutions of government are solemn instruments, addressed to the common sense of the people and designed to fix, and perpetuate their rights and their liberties. They are not to be frittered away to please the demagogues of the day. They are not to be violated to gratify the ambition of political leaders. They are to speak in the same voice now, and for ever. They are of no man's private interpretation. They are ordained by the will of the people; and can be changed only by the sovereign command of the people."
The "living Constitutionalists" on the Supreme Court and in the legal academy make a mockery of the Constitution. James Madison wrote in 1824, "I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense." Yet a subversion of this simple Madisonian principle is accepted by far too many with influence over teaching, crafting, and adjudicating our laws.
Thomas Jefferson rightly wrote in a letter to Albert Gallatin in 1802 that "[w]e ought always to presume...the real intention [of the Constitution] which is alone consistent with the Constitution." Unfortunately, that presumption is being abandoned in modern America. It is a presumption that has been explicitly abandoned by the modern Supreme Court which declared in Lawrence v. Texas in 2003 that "[a]s the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom." Properly translated, this line from Justice Anthony Kennedy should actually read, "As the Constitution deteriorates, judges in every generation can twist its principles in their own search for imposing their policy preferences."
I have not focused on the actual cases where the Constitution's original meaning has been abandoned, as unfortunately there are too many. But understanding the correct way to interpret the Constitution is the first step in confronting those advocating for that which undermines Constitutional validity. The Constitution has been shredded for too long, and it is time to piece it back together. As Supreme Court Justice Clarence Thomas wrote in his dissent to the ridiculous 2005 Kelo v. City of New London ruling, “When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning.” It is the job of every American that supports the Constitution and the rule of law to fight back against the ludicrous perversions of the Constitution that are today so prevalent, and demand the restoration of what amounts to nothing more than Constitutional sanity.
ML/NJ
It's still nice, Abe's meanderings notwithstanding.
Thus the Constitution has been wrested and rendered ineffective by our judicial activist judges.
The Constitution is not a statement of general principles but a framework work for the federal government. The Bill of Rights specificly limit the authority of the central government. The problem is the way that legal positivism has displaced the old natural law approach. Every judge on the Supreme Court, even the Originalists, think like Justice Holmes. The idea is that the law must be reinterpreted to meet the needs of a changing society. Holmes was willing to let legislatures make the changes rather than judges, but as an atheist—and a man whose psyche had been shocked profoundly by the events of the Civil War—he lacked faith in anything except power. Justice White spoke of Roe, v. Wade as a raw exercise of judicial power. That is the way that judges think today. Take the case of the judge in Wisconsin, who did not hesitate to suspend the operation of a legislative act even though it involved her intervention in the operation of the legislature. The motto today is: See what you can get rid of.
The Constitution is silent on the issue of secession. Why do you insist that the States had to right to secede? What was at issue was not legal but political. The Senate might have mediated the issues, since essentially it was then an assembly of ambassadors. But the Deep South had already abandoned that body.
In all sincerity, I want to say “Thanks!”
It’s great to see that there is someone in the blogosphere who is proud enough of his work and respectful enough of his fellow FReepers to post his essays in full right here.
(Now, I may actually go and read the whole thing!)
“I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that is not the guide in expounding it, there may be no security.” —James Madison, letter to Henry Lee, 1824
Barnett shreds the Left.
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