The confirmation hearings for Supreme Court justice nominee Neil Gorsuch have reinvigorated the debate about how to properly interpret the Constitution. The nominee’s reputation as an “originalist” has progressives whipped up into frenzy and once again aggressively peddling the myth of a “living, breathing Constitution.”
For whatever reason, Cosmopolitan decided to take a break from peddling soft literary porn to weigh in on the fray. In a recent article titled 9 Reasons Constitutional Originalism is Bullsh*t, Cosmo senior political writer Jill Filipovic manages to cram an astonishing amount of constitutional ignorance into a single column.
Filipovic touts herself as a “non-practicing lawyer.” Like many in the legal profession, she suffers from “J.D. impairment” – J.D. referring to Juris Doctor, the title conferred on law school graduates. I don’t doubt that she knows plenty about the law, but her most recent tome reveals she knows virtually nothing about the Constitution. They don’t teach that in law school. For the majority of law students, constitutional law starts with Marbury v. Madison, and consists wholly of precedents and pronouncements handed down by the politically-connected lawyers employed by the federal government.
Like most American lawyers, Filipovic seem to think federal judges are demigods tasked with breathing life into the living, breathing Constitution.
To support her legal position – a necessary foundation for her progressive politics – Filipovic rummages around in the debris left inside her mind after a successful foray through law school and plucks out nine reasons “originalism is bullsh*t.” She claims the “writers of the Constitution” didn’t expect Americans to defer to their intent, but that they “arguably intended for it to be a living document.”
Filipovic’s entire article rests on this fairy tale.
In fact, the American colonists fought the Revolution to extricate themselves from a political system based on a “living breathing” constitution. In the British system, the government was sovereign, not the people. No distinction between “the constitution or frame of government” and “the system of laws” existed. They were one and the same. Every act of Parliament was, in essence, part of the constitution. It was an absurdity to argue an act of Parliament was “unconstitutional.” Since it was sovereign, anything Parliament did was, by definition, constitutional. In fact, parliamentary acts became part of the constitutional structure. Put in simple terms, the British system operated based on a “living breathing” constitution, formed and defined by the government itself – specifically parliament.
This is precisely the kind of government people like Filipovic want. Just substitute “Supreme Court” for “Parliament” and you have the British system.
But the Americans built their system on a completely different political framework. The concept of written constitutions evolved in the years after the Declaration of Independence precisely so governments would not have the ability to define their own powers. With a written constitution, governmental powers can only be expanded by an act of the people – not the government itself.
Before taking apart Filipovic’s nine points, we should first define the term originalism.
To read the Constitution through an originalist framework means we seek to interpret and apply it in the way people understood it at the time of ratification. In other words, we look at what supporters said each provision meant as they were “selling” the Constitution to the people and trying to overcome intense opposition to ratification. The assertions of supporters served as the basis upon which the ratifiers – the elected representatives of the people – agreed to adopt the Constitution.
The U.S. Constitution is essentially a contract forming a union of states. In any contract, provisions have a fixed meaning. When you sign on the dotted line, you expect them to remain constant over time. When disputes arise, you always attempt to ascertain what the parties believed they were agreeing to. The ratifiers acted with this expectation.
James Wilson was a Pennsylvania lawyer and politician. He was a key member of the Philadelphia Convention that drafted the Constitution, and one of its most influential supporters during the ratification process. His State House Yard Speech laid the foundation for the ratification effort. In 1790 and 1791, Wilson delivered a series of lectures titled Of the Study of Law in the United States. In one of these lectures, he asserted this was the proper way to interpret legal documents.
“The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it.”
Think about it. Would you sign a living, breathing mortgage? Would you enter into a living, breathing employment contract? Would you sign a living, breathing agreement with a builder to build an addition on your house?
Of course not! Because you would have no idea what that contract really means. And you certainly wouldn’t agree that the other party to the contract gets to decide how it will be interpreted.
Filipovic’s nine assertions notwithstanding, originalism offers the only interpretive alternative that makes sense in the context of America’s founding principles and the Constitution’s contractual nature.
So let’s break down Filipovic’s nine reasons originalism is bullsh*t.
1. No one is really an originalist.
Filipovic has a point here – at least in the world of judges and lawyers.
In fact, Gorsuch doesn’t really count as an originalist. He utilizes more of a textualist approach. He interprets the constitution based on the words of the text, not necessarily the understanding of the ratifiers. Hanging the modern meaning of words on constitutional text can create interpretations that stray far from the original understanding. For instance, the word “commerce” encompasses a much wider range of action today than it did in the late 1700s.
Furthermore, even the most conservative jurists tend to uphold precedent, even when it diverges from the original intent. Gorsuch said he believes Roe v. Wade should stand on precedent. But relying solely on precedent does not represent the thinking of an originalist.
But when Filipovic says no one is an originalist, she really means people like Gorsuch don’t stick to the original meaning consistently because they have a political agenda. She uses an absurd “originalist” construction of the Second Amendment to make this point.
“Until recently, judges generally interpreted the Second Amendment according to the same narrow interpretation many historians say the founders held, as evidenced by the text itself: that the Second Amendment doesn’t give individuals the right to bear arms, but rather provides for the right of well-regulated militia to exist. There’s also significant historical evidence that the framers didn’t intend to protect individual rights to bear arms.”
Notice the bait-and-switch in the quote. Filipovic relies on a textualist approach to support part of her argument, not an originalist interpretation.
At any rate, I seriously doubt Filipovic has read “many historians,” and I would bet dollars to donuts she’s never read one who does not share her political worldview. The notion that the founding generation somehow rejected an individual right to keep and bear arms, and that the Second Amendment only applied to a select group of people known as “the militia” does not stand up to historical scrutiny. I would suggest Filipovic should actually read what important figures in the founding era wrote instead of relying on historians that confirm her bias. I could write an entire essay on this subject alone. For more on the original meaning of the Second Amendment, click HERE, HERE and HERE.
2. Societies evolve, and that’s a good thing.
“And our laws should reflect that evolution.”
I agree. So did the framers and ratifiers of the Constitution. That’s why they included an amendment process. But no founder ever said the Supreme Court, or the president, or Congress, should have the authority to change the Constitution on a whim by their own authority. If you want to “evolve” the Constitution – amend it.
3. Words evolve to reflect changing norms.
James Madison, widely considered the “Father of the Constitution,” called bullsh*t on this idea in a letter to Henry Lee dated June 25, 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!”
4. Technology evolves, and the law has to keep up.
See No. 2
5. Originalism is a cover for legal discrimination.
No progressive analysis of constitutional originalism would be complete without blowing the “racist” dog whistle. That seems to be the main purpose of this assertion, because the point she makes has nothing to do with originalism.
“A strictly textual reading of a law isn’t neutral; it also invites in the reader’s own biases and assumptions. And when that reader is looking to the historical record for the original meaning, well, a lot of our laws originally allowed a lot of terrible acts.”
Again, note the bait-and-switch. She argues here against textualism, not originalism. Beyond that, I can make this exact same argument against the “living breathing” constitution. It allows a lot of terrible acts. Just ask the more than 100,000 Japanese Americans who spent WWII locked behind barbed wire. In fact, the events she cites as proof of the dangers of originalism actually did happen within the context of a living breathing constitution! Proponents of an elastic Constitution always use it to expand government power. Just sit back and think of all the evil caused by excessive power. Originalism and limited government aren’t the problem here.
6. Not even the founders were originalists.
“The framers of the Constitution didn’t offer any instructions for how to interpret the document, nor did they get into specifics on what each of its provisions meant. Instead, they proffered broad concepts that, two centuries later, remain broadly applicable.”
Filipovic should read the ratification debates. They reveal the very specific, intended meaning of nearly every constitutional clause. Heck, just pick up a copy of the Federalist Papers for a start. This assertion goes beyond absurd. And yes, the founding generation did tell us how to interpret the document. Go back to No. 3 and re-read what the “Father of the Constitution” wrote – specific instructions on how to interpret the document. Or, if you prefer, how about Thomas Jefferson? Granted, he wasn’t a framer, but I think he at least qualifies as an influential founder.
“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 intended against it, conform to the probable one in which it was passed.”
Apparently, Jefferson – a founder – was an originalist.
7. The founders weren’t fortune tellers and couldn’t predict every possible legal issue.
See No. 2.
8. No one really wants to live in an originalist country.
Fundamentally, originalists hold the Constitution created a union of sovereign states with a general government of limited, enumerated powers. Most political authority remains with state governments and the people themselves. I think a lot of Americans would prefer a decentralized political system as opposed to living under a monopoly government dictating nearly every aspect of their lives — from what plant they can smoke to what bathroom they can use.
9. A Constitution that doesn’t reflect changing norms and realities is a Constitution that would eventually prove itself ineffectual and irrelevant.
See No. 2
Progressives want a living, breathing Constitution because they want to mold society into their own image. They crave power. Originalism constrains power. And despite their lip-service to constitutional fidelity, conservatives want the same thing – power.
But the rule of law requires consistency. Otherwise, government becomes arbitrary. When the limits on government power become subject to reinterpretation by the government itself, it becomes limitless in power and authority.
That’s exactly what we have today. The federal government makes up things as it goes along. The feds claim the power to tell you what kind of light bulb you can use and how much water you can have in your toilet.
They fight undeclared wars all around the world.
And they spy on virtually everybody in America.
All based on this living, breathing lie.