If the Constitution is law, then presumably its meaning, like that of all other law, is the meaning the lawmakers were understood to have intended. If the Constitution is law, then presumably, like all other law, the meaning the lawmakers intended is as binding upon judges as it is upon legislatures and executives. There is no other sense in which the Constitution can be what article VI proclaims it to be: “Law….” This means, of course, that a judge, no matter on what court he sits, may never create new
constitutional rights or destroy old ones. Any time he does so, he violates not
only the limits to his own authority but, and for that reason, also violates the
rights of the legislature and the people….the philosophy of original understanding is thus a necessary inference from the structure of government apparent on the face of the Constitution.
Robert Bork, one of the titans of American Law, has died. The foremost expert on anti-trust, and a champion of originalism in regard to the Constitution, Bork was appointed by President Reagan to the United States Court of Appeals for the District of Columbia. In 1987 he was nominated by Reagan for the Supreme Court. In a campaign of lies and personal vilification spearheaded, fittingly enough, by Senator Edward M. Kennedy his nomination was defeated. If he had been confirmed, Roe v. Wade would now be merely a bitter memory. Continue reading
I have just finished a rather thorough book on the history of the ratification debates written by Pauline Maeir, titled Ratification: the People Debate the Constitution. The recurring theme throughout the debates from the Constitution’s opponents is concern that the Framers had created a centralized state that would, especially through its vast taxing powers, become corrupt and tyrannical. I have been over this to some extent in a previous post, and I once again highlight the words of the Anti-Federalist writer Brutus because it is one of the best expressions of anti-constitutional angst:
Exercised without limitation, it will introduce itself into every corner of the city and country. It [the national government] will wait upon the ladies at their toilett, and will not leave them in any of their domestic concerns; it will accompany them to the ball, the play, and the assembly; it will go with them when they visit, and will, on all occasions, sit beside them in their carriages, nor will it desert them even at church; it will enter the house of every gentleman, watch over his cellar, wait upon his cook in the kitchen, follow the servants into the parlour, preside over the table, and note down all he eats or drinks; it will attend him to his bed-chamber, and watch him while he sleeps; it will take the cognizance of the professional man in his office or his study; it will watch the merchant in the counting-house or in his store; it will follow the mechanic to his shop and in his work, and will haunt him in his family and in his bed; it will be a constant companion of the industrious farmer in all his labour, it will be with him in the house and in the field, observe the toil of his hands and the sweat of his brow; it will penetrate into the most obscure cottage; and finally, it will light upon the head of every person in the United States.
Fast forward 223 years later (or more than 100 years if you’re Ezra Klein), where we witness the Constitution being read aloud on the floor of the House of Representatives. Republicans have promised that in every proposed piece of legislation they will cite the constitutional authority for each provision – and contra what the New York Times may think, Congress, and not just the Judiciary, has the authority and ability to interpret the Constitution for itself as a body (as does the President). The reason for all this as that conservatives feel that a more filial observance of the powers – and limits to said powers – of the Constitution will reign in the federal government. In other words, we need to more faithfully interpret the Constitution if we want the federal government to become less centralized and less tyrannical.
So were the Ant-Federalists right? Reading Maier’s book, as well as any selection of the Anti-Federalist papers, one is almost tempted to label the constitution’s original critics as prophets as indeed many of their worst dreams came true. Perhaps the most prescient prediction is that the federal government would, in essence, swallow up the states as state and local governments have diminished in power and authority over the years.
It’s also worth remembering that the Constitution was intentionally designed to increase the power of the federal government. I cringe a little when conservatives claim that the Constitution was designed to limit the powers of the federal government. Well, in point of fact the Constitution was meant to improve upon the Articles of Confederation and make it easier for the federal government to act. Under the Articles of Confederation legislation required unanimous consent among the states. Further complicating matters, some states refused to furnish needed funds to keep the national government solvent. So the purpose of the Constitution was in fact to enhance federal authority.
But the story doesn’t end there. The delegated powers were few and well-defined. One of the principal Anti-Federalist arguments was that the Constitution lacked a Bill of Rights, to which the Federalists responded that the Constitution itself was a bill of rights. The people need not fear that the federal government would engage in actions that were clearly outside of its delegated authority. Eventually the first Congress would adopt a bill of rights, partially as a means to placate reluctant ratifiers.
And so now proponents of limited government turn to the Constitution in order to justify a more limited state. Are we simply wrong? Perhaps the Constitution’s grant of authority is as broad as the Anti-Federalists feared, and we are clinging to a mistaken notion of what the Constitution does and does not prohibit. I’m sure several people reading this would tend to agree with that notion. Anybody remotely familiar with my writing would not be surprised when I say that part of the crisis we face is due to a neglect of the original intent of the Constitution. The problem lies principally with a judiciary that has mis-interpreted the Constitution so overwhelmingly that they have rendered large parts of it – especially the Tenth Amendment – practically null, while expanding and twisting other elements – notably the commerce clause and 14th Amendment – to fit their needs. Personally I think the case of Wickard v. Filburn did more damage to the Constitution than any other decision other than Roe. If you’re not familiar with the case, do read the opinion of the Court as handed down by Justice Jackson, and see how the Court – unanimously – decreed that eating food that you grew on your farm somehow affected interstate commerce. Once such a tenuous connection was made between private activity and interstate commerce, the floodgates were opened, tempered only slightly by narrow Supreme Court decisions in the late 90s that did not fully reverse the reasoning behind Wickard.
At any rate, I find it mildly amusing that proponents of limited government have transformed from the most virulent opponents of the Constitution to its most vocal supporters. I suspect that conservatives and leftists will have wildly varying opinions as to what that signifies.
Although the subject of President Obama being honored by Notre Dame has quickly cooled in the fast-paced blogging universe- I wanted to weigh in with some comments because I think it is important to hold the President to account on some of the promises he made in his speech, and to offer some ideas for how Catholic universities should approach such political intersections in the future.
With the announced retirement of Supreme Court Justice David Souter President Obama wasted no time in addressing the issue of what he’s looking for to fill this vacancy. In so many words he clearly stated his desire for an activist judge with an eye towards reengineering America [emphasis and comments mine].
“It is also about how our laws affect the daily realities of people’s lives [meaning he wants a Justice who holds fast to the Living Constitution Theory,ie, an activist judge finding invisible law where none existed], whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation.”
The following excerpt clearly reveals President Obama’s contempt for legislative history in effect eliminating a potential nominee that adheres to the theory of original intent.
“I will seek someone who understands that justice is not about some abstract legal theory or footnote in a casebook.”
One thing is for sure, it will be an extremist liberal and pro-abortion nominee.