Originalism Is the Law of the Land.

 by

       M. Richard Maxson

      The Constitution’s grant of essentially unlimited power springs forth in its opening phrases: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

 

      There are those on the left of the political spectrum that believe that the Constitution can be “adjusted” at will rather than through the process set forth. These are known as “textualists or living constitutionalists.” Clayton J. and Henry R. Barber Professor of Law at Northwestern University Pritzker School of Law, argues that “Originalists believe that the constitutional text ought to be given the original public meaning that it would have had at the time that it became law… Living constitutionalists believe that the meaning of the constitutional text changes over time, as social attitudes change, even without the adoption of a formal constitutional amendment pursuant to Article V of the Constitution.”

•  “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation.”  - James Madison

      James Madison made it quite clear that textualism was NOT the way the Constitution should be interpreted. In that sense alone it is the legitimate Constitution.” In an 1824 letter to Henry Lee: “With a view to this last object, 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. And that the language of our Constitution is already undergoing interpretations unknown to its founders, will I believe appear to all unbiassed Enquirers into the history of its origin and adoption. Not to look further for an example, take the word “consolidate” in the address of the Convention prefixed to the Constitution. It then and there meant to give strength and solidity to the Union of the states. In its current & controversial application it means a destruction of the states, by transfusing their powers into the government of the Union.”

      This comment might suggest Madison was merely making a theoretical observation, when he was actually launching a full-throated attack on what we would call “living constitutionalism.” The complete passage forces the question: Why should we apply to Madison’s constitution an interpretative technique he so roundly repudiated?

       Today we rather than the intent of the makers, but originalism remains the prevailing rule of documentary construction throughout the law. In contrast, the Left views the role of the Supreme Court as activist, usually referring to the “the intent of the parties,” to advance their agenda (regardless of whether or not it meets constitutional muster)

       Anti-originalists sometimes contend that originalism is a creation of modern conservatives. History renders this claim laughable. “It is up to us to reclaim our heritage of equal and impartial justice. It is up to us to re-dedicate ourselves to the traditions and wisdom of our Founders,” said President Trump in 2019.

       Originalists need to emphasize that the “intent of the makers” standard is not unique to constitutional interpretation. It is, and long has been, the standard for interpreting documents generally. Pre-Founding-era and Founding-era legal sources show the “intent of the makers” guiding construction of documents of all kinds. According to a White House Fact Sheet, “President Trump is committed to appointing judges who set aside their personal views and political prejudices to do what the Constitution and the law demand. This work is especially important due the left-wing’s push to throw away legal precedent and to abandon the Constitution in order to impose its own radical agenda.”

       The Constitution is set up so that power is shared between the president, Congress and the courts, and between the federal government and the states. This cuts down on vacuums where no one has clear authority, instead creating situations where multiple people or institutions are empowered to act. Serious constitutional crises occur when our institutions are rendered ineffective, which is usually about politics more than process, and often has less to do with how institutions were designed than with how legitimate they are perceived to be.