Phony Originalism
12. Aug, 2009 
85 Comments
by Kevin R.C. Gutzman, Taki’s Magazine
Since the days of Ronald Reagan and Edmund Meese, the Republican Party’s position has been that judges should be bound by the people’s understanding of a particular constitutional provision at the time they ratified it. This notion goes under the name “originalism.”
Recent events, including the Republican response to President Obama’s nomination of Judge Sonia Sotomayor to the Supreme Court, reveal that the party is a highly unreliable vehicle for this principle.
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So, for example, the Republican Party decried the Supreme Court’s decision in Kelo v. City of New London (2005) that the Fifth Amendment did not bar New London, Connecticut, from seizing private property for a public purpose. According to the stock criticism, the Fifth Amendment left open the possibility of government seizure of private property only for public use, not for public purpose.
What this criticism omits, however, is that the Fifth Amendment, like the rest of the Bill of Rights, is a limitation solely on the Federal Government. Since the government of New London is not the Federal Government, an originalist reading would hold the Fifth Amendment inapplicable.
Just try explaining this to a Republican audience. Not only do Republicans argue for application of the Fifth Amendment’s Takings Clause against state governments. They also vociferously insist that the Second Amendment is enforceable against the states.
In fact, Republican lawyers have recently found success in persuading some federal judges for the first time to treat the Second Amendment as enforceable against the states. It once was only the left-most Supreme Court advocates (for example, those who argued against prayer in public schools) who argued for the Incorporation Doctrine. Now, however, this is a “conservative” position and “conservative” public-interest lawyers take this position before the Supreme Court.
The Bill of Rights as an obstacle to federal infringement on state authority was only one element of the underlying principle of the U.S. Constitution. This is “federalism,” the notion that the states (meaning the sovereign people of each state) had delegated only particular powers to the Federal Government. In the Reagan era, with Edmund Meese as attorney general and Charles Cooper as assistant attorney general, this principle received an emphasis it had not since 1937.
Now, however, the Republicans take an energetic position on the wrong side of the question. So, for example, Sen. John Thune of South Dakota recently offered his Concealed Carry Amendment to a defense authorization bill.
Under this amendment, if someone had a right to carry a concealed weapon in his home state, he would be given federal authorization to carry it in states he might visit. What constitutional provision empowers Congress to force this policy upon the states? Don’t be silly.
Of course, the question of gun rights is not the only currently live one that excites core Republican voters. Therefore, it also is not the only one that prompts Republican office-holders to ignore the principle of federalism.
In 2006, the editors of National Review endorsed the notion of an amendment to the Constitution defining marriage. Why should the Federal Government impose a single definition on all the states, who have always had complete control over such questions? Because federal judges cannot be restrained, those editors reasoned, from legislating their own definition. In other words, if you don’t trust one fox, put the whole fox family in charge of the chicken coop.
Alas, to argue for augmenting federal authority seems to be what the editors of National Review reflexively do. Who cares about the Tenth Amendment’s reservation of all undelegated powers to the states?
No wonder Democrats and pro-choicers generally say that the Republicans are hypocritical in invoking the principle of federalism against Roe v. Wade. What is a “principle,” they rightly wonder, that is only invoked when it cuts in the desired direction?
That is a good point.
It gains additional force from the fact that Republicans do not even invoke it consistently across all abortion disputes. In Gonzales v. Carhart (2007), the Supreme Court upheld a congressional ban on partial-birth abortion. In a concurring opinion in that case, Justices Antonin Scalia and Clarence Thomas noted that the Commerce Clause, as properly understood, did not give Congress power to enact such a ban.
However, they said, so long as the Court’s unfounded Commerce Clause precedents stood, Scalia and Thomas would join in extending them to this new area.
Principled originalism in action!
Republicans also generally join in opposing pro-black discrimination in government hiring, firing, promotions, contracting, and other such decisions (and cheered the recent Ricci decision). They do this on the ground that the Equal Protection Clause of the Fourteenth Amendment requires color-blindness on the part of government.
This is of course a morally appealing argument. But the issue is not whether the Republican policy positions are appealing; that is a legislative question. The question is whether the Republicans’ constitutional position has merit.
Here, as in the other areas described above, it does not. The Equal Protection Clause was not intended as a wide-ranging mandate for government equality, but to have much narrower application. The Supreme Court long recognized this fact. Conservatives do their reputation for intellectual honesty no favors by arguing for extension of unfounded precedents.
In short, then, Republicans generally do not stand for principled adherence to originalism, which once was called “the Constitution.” Across a range of questions, they mirror their Democratic opponents in advocating judicial legislation of their preferred legislative outcomes.
Kevin R. C. Gutzman, J.D., Ph.D., Associate Professor of History at Western Connecticut State University, is a New York Times best-selling author. He’s written Virginia’s American Revolution: From Dominion to Republic, 1776–1840, The Politically Incorrect Guide to the Constitution, and as co-author with Thomas E. Woods, Jr., Who Killed the Constitution? The Fate of American Liberty from World War I to George W. Bush.
Copyright 2009, Kevin R.C. Gutzman. Published with permission of Taki’s Magazine
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On a side note as regards this debate concerning legal methodology of construction and interpretation, this was a concept that was unsettling to me as I was going through law school.
My undergrad was in accounting. Except for a seemingly small amount of accounting that deals with GAAP (Generally Accepted Accounting Principles), which are akin to statutes, much of accounting was logic and math. You applied both and BAM! You either got the answer right, or you got it wrong. I was VERY good at that.
Then, came law school. Going in, I figured it worked pretty much the same way with laws. You researched, studied and BAM! You found the answer.
This was FAR from the case. In law school, we spent pretty much the entire time struggling over the confounding problems that surround interpretation and construction. I was largely in denial for a good while.
A few years after I was out in practice with a firm, I realized that all the confusion the law professors were trying to drill into my head was EXACTLY what law-making and legal interpretation and construction is all about. Once I accepted that, there was no choice but to conclude that, as Sotomayor proclaimed, the courts do INDEED make law.
This is not something that we should look at as being abhorrent, so much as it is that the courts would not need to exist BUT FOR the incompleteness of the Constitution and statutes. Therefore, the courts make laws out of NECESSITY.
So, it is what it is. We just have to chalk it up, accept it, and deal with it as everyone else does – just struggle, argue, debate, and forge ahead.
Yes, Michael. I have a general familiarity with the problems associated with judicial activism. But, it is impossible to expect judges to be inactive. This, I explained, I think rather well, above. If it was not for the NEED for judges to decide what laws MEAN, we would not need courts at all.
Does this understanding mean that I am ready to just chalk everything up as “fine?” Not on your life!
I might agre that fiat is necessary and CAN be good, but that does not mean I believe ALL fiats are good.
I am VERY, VERY much for a very marked retreat in the activities of the federal government. So, like you I will stand firm, and argue my ground. But honestly, and I think fairly, I cannot profess to possess the key to perfect logic. That key does not exist in the law. It never has exitsed and never will.
BTW: There are many, many cases before 1925 that vastly expanded the role of the federal government. We covered lots and lots of them in law school. I can’t give you names off-hand, but could easily find them and compose a list. There really was not big “swing” in judicial temperament since 1925. Rather, it has been a continuum pretty much right out of the starting gate in 1781. There have, however, been some very big blips here and there, such as the Social Security Act litigation. The reason for the big blip was not because judicial temperament swung in a very big way. It is because Congress enacted some far-reaching legislation.
This is why I have always maintained that those placed in power seek more power. This process is unavoidable. I do not believe it is humanly possible to have a government that does not seek to grow itself. That’s where the role of the people becomes so important.
As history has proven time and again, government will always grow until the point when the people rise up and tear it down.
Michael says: “The point about “nothing new” was that while there would be something new in practice, it was conferring nothing new as far as constitutional principle. And since the constitution would never, ever have been considered to be in force against the states (except where it’s said specifically), nothing new, means exactly what it says. The system didn’t change.”
This is the flaw in the logic. You can’t have (1) something new in practice, AND (2) nothing new as far as Constitutional principle.
Constitutional law contains principles that are practiced. If the practice is ordered to be changed, the princple has, by definitionm changed.
That is why the 14th created a change. It says “No state shall…” That is a new principle, and it necessitates a new practice.
Another great article from Gutzman! Points out the lying hypocrites in the GOP who pretend to be originalists. “Originalism for thee but not for me.” True admirers of liberty who advocate this have their heart in the right place whereas the political Republican panderers are just being disingenuous and manipulative. Republicans make me sick!
Don’t they, though?
Michael says, “I don’t have much hope of this viewpoint getting to the mainstream, especially since even allies of the 10th amendment and limited government are so adamant about pushing for this kind of expansion of federal power, but I’ll continue making the case!”
Actually, what the allies of the 10th stand for is the 10th. That’s it.
So, assume we have an ORIGINAL Constitution. Assume, too, we add the BOR that provides what the federal government cannot do.
Now, assume, we amend and add the 14th, which says, “No state shall….”
Now, this 14th is a brand new thing. Obviously, it cuts into the 10th. That was its purpose. Whatever is prohibited to the states by the 14th, by definition, is no longer a power reserved to the states.
Now, do you support powers reserved by the 10th as they were BEFORE the 14th was added? Or do you support the powers reserved by the 10th as they are AFTER the 14th was added?
There is where I think your argument could be clarified.
Good comment – Lockaby
“Perhaps I am missing something here, but it seems to me each amendment in the Bill of Rights defines its own application, at least to a point.”
If the state legislatures had this right to ratify “all, or any” of these ten proposed amendments, then certainly it would not follow, that the possible rejection of any one of these amendments would, then overpower, the usefulness, and the authority, of the others remaining.
And likewise it would seem to me that …
No general amendment can be prescribed to be to that very purpose of every other amendment, every amendment must be tuned to its own discourse and purpose, or all amendments of any other kind are irreverent, and they are then liberated from us, without decision.
No general amendment, nor this opinion, that there is one, can be Constitutionally used to subdue all other amendments, or all other Constitutions, at will.
“It is not the function of these federal courts, nor its federal legislative body, to alter that method by which this Constitution has affixed our amendments.”
The fractioning of this Constitution’s proper amendment procedures by this designing of a National amendment which is intentionally allowed to be so vague as to afford to any branch of this federal government, all rights, to those majority restraints constitutionally conceived firstly by the people, would be a tremendous assumption of right, for any, conceivable form of totalitarian action, against this Constitutional Republic, caused, by anyone who would use such an amendment in this manner.
Irresponsible actions become as endless, as they are self justifiable, when they are ordered by those who are not held responsible, nor are such effects seen as a discomforting problem by those who are found to be completely unaffected by them from within their own supremely gated communities.
This Nation will not be long held united by nine men in political robes, who intend to subvert the will of the people and undermine their Constitutional republic.
This 14th amendment has been so damn misconstrued, that it now binds us more to suppositions, and inferences, then to its original intent.
In communist nations, those national leaders do not have to give a (donkey’s red blanketed ass) as to whether, or not, they are agreed with, but in our county, these federals believe that our people, do not have a permanent right, to what they themselves have agreed.
How could any “liberal”, or any “conservative” support a judiciary that has declared itself to be the independent masters of our laws, as well as our own Constitutions.
Why should it not be of our peoples concern, as to what issues, are then taken out of those hands of our own legislators.
When absolute authority can be bestowed on any governing body, by these mere opinions of Judicial Kings, this my fellow countryman is tyranny
If the Supreme court can act with such will, then there is no point in having any Constitutions.
Of what value are the peoples own Bill of rights, if congress can use their own Bill of rights, against them.
How can you execute and enforce something, you yourself do not understand, and how can an entire republic allow itself to be forced by what it does not itself understand.
My thougths on the Thune Amendment which I (now) believe is consistent with the Constitution and its protection of Federalism.
There are two kinds of politicians, those that wish to control you and those with no such intentions. (with Thanks to Robert A. Heinlein) The Constitution tries to control the former group. Works fairly well, all things considered. Sure beats out the Parliamentary type of government. Probably be a lot less problems for other countries, if their provinces or whatever, were sovereign states allowing central government a few privileges, but no rights.
Here is an interesting take on the 14th Amendment and its historical context, which I am sure that Michael Boldin is familiar with.
http://www.law.harvard.edu/students/orgs/jol/vol42_1/kaczorowski.php
This Harvard professor argues that congress does, in fact, have the power to enforce the BOR on the states. His argument focuses mainly around the civil rights act of 1866, claiming that this act was enacted to protect AND ENFORCE the rights of all US citizens, and thus was incorporated into the 14th amendment in order to ensure its constitutionality and to place statutory guarantees of civil rights into the constitution.
Personally, I think this professor is making a huge leap here. I think he is confusing “privileges and immunities” (which are ones of the focuses of the 14th) with the actual rights recognized by the bill of rights. The 14th does provide safeguards for privileges and immunities, but I believe that it clearly does NOT grant the federal government the power to safeguard the rights in the BOR. He is also disregarding that the definition of P&I was already defined in the constitution and it was not a synonym for the BOR.
He also repeatedly cites several examples of congressional use of plenary power to enforce things upon the states (such as property rights) as evidence that the framers intended for the BOR to be enforcable upon the states. I would say that just because congress did such a thing does not mean that they have been granted the power to do so in the constitution–which is one of the primary reasons we are in this mess and this website exists!
He also repeatedly mentions Madison’s support for the BOH to be enforceable on the states and uses this to justify his position that the 14th does this. However, he fails to mention that this idea of Madison was soundly rejected by congress, as Michael Boldin repeatedly touched on.
Futhermore, the Supreme Court recognized the limited reach of the 14th Amendment several times, including in Barron v. Baltimore. It wasn’t until the middle and latter half of the twentieth century that the “incorporation doctrine” was adopted by the courts. This would clearly indicate that the originalist view of the 14th was NOT to allow the federal government to apply the bill of rights to the states.
It is leaps such as these, where people try to find holes in the constitution and/or twist its words in order to justify granting the government more power, that have really screwed things up. If the framers really wanted the 14th to make the BOR federally enforceable on the states, they would have EXPLICITY said so. The amendment would have specifically defined it or they would have added a completely separate amendment stating so. They would have had to because the BOH clearly states things like “congress shall make no law”, rather than, “a state shall make no law”.
Think about the following if you subscribe to the incorporation doctrine–if it was really the framers’ intention to make such a huge, sweeping change to the constitution and federal power, why would they do it in such a subtle manner as to make people wonder what the intent was????? Why would they choose to completely change our decentralized government into a centralized one with and in an amendment that was about naturalization, emancipation, representative apportionment, and insurrection?? Such a drastic change would have certainly been VERY clearly explained and much debate would have existed at the time about it. It would have been made so clear that no room for speculation would have been left, which would have most certainly required a separate amendment.
This same logical concept I’ve outlined regarding the perversion of the 14th Amendment also applies to the theory that the “necessary and proper clause” grants the government the power to do whatever it basically wants–why would the framers have even bothered to write such a document that limited and restrained government power with an extremely elaborate set of checks and balances if they were going to simply include a clause that grants unlimited power to the same government? It just makes no sense.
Excellent comments so far here. I appreciate the dialog here very much because I have learned a great deal from it.
Jason Greene Says:
August 15th, 2009 at 7:31 pm “framers intended for the BOR to be enforcable upon the states. I would say that just because congress did such a thing does not mean that they have been granted the power to do so in the constitution–which is one of the primary reasons we are in this mess and this website exists!
He also repeatedly mentions Madison’s support for the BOH to be enforceable on the states and uses this to justify his position that the 14th does this.”
What is “BOH”? I get BOR for Bill of Rights, but what’s BOH? This is only one example.
On my keyboard H & R are not adjacent, so I can’t think it’s only a typo.
Excellent point Jason…
“Such a drastic change would have certainly been VERY clearly explained and much debate would have existed at the time about it.“
And lets not forget that many of the signers of the Constitution itself, were former State legislatures and State attorney Generals
Many had also partaken in their State constitutional conventions, and were responsible for the formation of their own State Constitutions, and some had even signed the Declaration of Independence.
So when these federal judges attack our republic, they have betrayed the people.
Jim,
When I wrote “BOH”, it was actually a typo. I meant to write “BOR”. I’m not sure why it happened twice.
Jason, Thanks for your courtesy. BOR it is.
I would like to mention that to enforce the 10th we might want to repeal or laugh out of court, the false 17th, which removed the selection of U.S. Senators from their State’s legislatures, and threw the election of Senators into the same pond of passions as the lower house.
If nothing else, this rotten act broke a major check & balance carefully written into the original Constitution.
Here’s an entry from http://www.USchronology.com: Description
1/5/1788
Bright Alexander Hamilton, using the pen name “Publius,” publishes “Federalist #34,” paragraph two of which explains the importance of maintaining two independent legislatures:
It is well known that in the Roman republic the legislative authority, in the last resort, resided for ages in two different political bodies not as branches of the same legislature, but as distinct and independent legislatures, in each of which an opposite interest prevailed: in one the patrician; in the other, the plebian. Many arguments might have been adduced to prove the unfitness of two such seemingly contradictory authorities, each having power to annul or repeal the acts of the other. But a man would have been regarded as frantic who should have attempted at Rome to disprove their existence. It will be readily understood that I allude to the COMITIA CENTURIATA and the COMITIA TRIBUTA. The former, in which the people voted by centuries, was so arranged as to give a superiority to the patrician interest; in the latter, in which numbers prevailed, the plebian interest had an entire predominancy [sic]. (Emphasis in the original)
Postscript: This concept of bicameralism has been vitiated, demeaned and disparaged by the fraudulent 17th amendment.
(This is the first of 26 entries.) I searched on 17th amendment.
KEEP THE POWDER DRY!
“WHENEVER LEGISLATORS ENDEAVOR TO TAKE AWAY AND DESTROY THE PROPERTY OF THE PEOPLE, OR REDUCE THEM TO SLAVERY UNDER ARBITRARY POWER, THEY PLACE THEMSELVES INTO A STATE OF WAR WITH THE PEOPLE, WHO ARE THEREUPON ABSOLVED FROM ANY FURTHER OBEDIANCE.” John Locke. Englih Philosopher.
Jefferson read Locke, and restated this position in some of the most beautiful English ever written. The Glorious Declaration is an artifact of history, it may be discussed, even disparaged, but it CANNOT be repealed or amended. Excerpt:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness. – That to secure these rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed,- That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.__ ***
If the Constitution of Original Meaning & Intent has been so distorted that the original limits of the Constitution CANNOT be discerned in the positions and actions of the present administration, then we are left with the primary Founding document that cannot be corrupted.
Parapacem, parabellum. Buy specie, guns and groceries.