Constitutional Interpretation The Old Fashioned Way

    After reading Jack Van Ens recent column, “Constitution’s meaning evolves,” I had to write a few comments in response.  Van Ens starts his article with a gratuitous swipe at Sarah Palin and then proceeds to attack those who subscribe to the philosophy of constitutional originalism.  
   Originalism is a means of interpretation that tries to discover the original meaning or intent of the constitution.   It is based on the belief that the judiciary is not supposed to create, amend or repeal laws (which is the realm of the legislative branch) but only to uphold them.   Most originalists, including Supreme Court Justice Anton Scalia, subscribe to this view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be.
    Originalists would tell you that the Constitution embodies a supreme set of legal, political, and moreal commitments made by the citizens of a country which specifically define the scope of federal versus state authority, public versus private power, and community versus individual rights.  Thus, where the Constitution speaks to an issue, it represents the final word on the matter.  Where the Constitution is silent, the issue is relegated to the democratic political process unless the citizens of the country decide to amend the Constitution to include this new issue.  
    One prominent proponent of original meaning is Supreme Court justice Anton Scalia, who said, “The Constitution is not a living organism, it is a legal document. It says something and doesn't say other things.” 
    Economist Thomas Sowell in his book Knowledge and Decisions argued that since the original designers of the Constitution provided for the process of changing it, they never intended for their original words to change meaning. Sowell also points out cases where arguments are made that the original framers never considered certain issues, when clear record of them doing so exists.
    What actually changes the Constitution are Amendments to the Bill of Rights.  The Bill of Rights is the first 10 Amendments to Constitution.  Everyone should be familiar with the first two (Freedom of Speech, etc, and the Right to Bear Arms) and the other eight are also laws that protect the ideals the Founding Fathers thought were inherent rights that people should enjoy in the US.  These have not been altered either, but amended by the other 17 Amendments to the Constitution. 
    Under the Originalist approach, there is a 'right' answer to constitutional questions that does not depend on the personal value judgments of individual Supreme Court Justices, or the changing 'problems' and 'needs' of society.  
    In 1987, Supreme Court Justice Thurgood Marshall delivered a lecture, "The Constitution: A Living Document," in which he argued that the Constitution must be interpreted in light of the moral, political, and cultural climate of the age of interpretation.
    Van Ens describes Originalists as naïve, but he naively describes the US Constitution as a living document that evolves with the times.   Jack says that we need to delve into the Constitutions intentions and apply them to current circumstances which sounds like reading tea leaves to divine the current meaning of a law.
    Progressives such as Jack try to portray the judicial philosophy of Originalism, whereby judges may actually check constitutional abuses by the other two branches of government by occasionally declaring laws or acts unconstitutional, the “new” form of judicial activision.
   Originalism is a threat to big government.  The whole point of the Constitution is to limit the power of government officials.  If the Constitution doesn't limit the government then the Constitution doesn't have a point.   It makes one wonder what would the framers say about whether a tax on people who did not buy health insurance is an abuse of Congress's authority under the commerce clause. 
    The late Chief Justice William Rehnquist said that the concept of a living constitution "has about it a teasing imprecision that makes it a coat of many colors."
    Justice Clarence Thomas has routinely castigated “Living Constitution” doctrine.  In one strongly worded attack, he noted that, “Let me put it this way; there are really only two ways to interpret the Constitution – try to discern as best we can what the framers intended or make it up.  No matter how ingenious, imaginative, or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution that the latest football scores.”
    To noted author, Judge Andrew Napolitano, the US Constitution is not a “living” thing; rather, it is a document which is unassailable and incontrovertible in its protection of basic human rights, rights which are immutable and which do not change from day to day nor from Century to Century.
    Judge Scalia has written that If a constitution no longer meets the exigencies of a society's "evolving standard of decency", and the people wish to amend or replace the document, there is nothing stopping them from doing so in the manner which was envisioned by the drafters: through the amendment process. The “Living Constitution”  " approach would thus only be valuable in the absence of an amendment process.
    Van Ens is a believer in this alternative to Originalism which is most commonly described as the Living Constitution; this is the theory that the Constitution was written in flexible terms whose meaning is dynamic.
   The progressive view contends that interpreting the Constitution in accordance with long outdated views is often unacceptable as a policy matter, and thus that an evolving interpretation is necessary[.  They also contend that the constitutional framers specifically wrote the Constitution in broad and flexible terms to create such a dynamic, "living" document.
    Opponents of the living constitution argue that the Constitution should be changed through the amendment process, and that the living constitution theory can be used by judges to inject their personal values into constitutional interpretation.
    Originalism deters judges from unfettered discretion to inject their personal values into constitutional interpretation.  Before one can reject Originalism as Van Ens has done in his article, one must find another criterion for determining the meaning of a provision, lest the "opinion of this Court [rest] so obviously upon nothing but the personal views of its members" as stated by Judge Scalia who has also stated that "there is no other" criteria to constrain judicial interpretation.
    If a constitution as interpreted can truly be changed at the decree of a judge, then "the Constitution… is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please," said Thomas Jefferson said.  Hence, the purpose of the constitution would be defeated, and there would be no reason to have one.
    If the courts are free to write the constitution anew, they will write it the way the majority wants.  This suggests the end of the Bill of Rights whose meaning will be committed to the very body it was meant to protect against: the majority.  By trying to make the Constitution do everything that needs doing, we shall have caused it to do nothing at all.
    Progressives will tell you that it is difficult to know what the US Constitution’s framers would have thought of any given situation.  No, it is not.  The Framers would have thought what is best ensures the continued liberty of the individual.  What is best for the individual, is what best guarantees his freedom, what best allows him to pursue life, liberty and happiness.
    And that pretty much sums it up.  You see, Mr. Van Ens, that is why Sarah Palin and other conservatives so revere the Founders.  They held an almost sacred regard for the individual and they structured our government to respect the rights and freedoms of the individual.  It is a pity that we do not have more people who share the Founders' views in places of power. 
    For Van Ens and other progressive liberals, the Constitution’s meaning is limited only by the imagination of five Supreme Court Justices.  By making the Constitution a living document, it becomes an empty vessel into which any five Supreme Court Justices can pour whatever brew they prefer regardless of that the rest of the country thinks about an issue.  While this power may be intoxicating to some judges, it is the very antithesis of constitutional orginalism.  The result is a judicial tyranny every bit as undemocratic and dangerous as the tyranny that the Founding Fathers rebelled against in 1776.
    So, Sarah Palin was correct when she says that she will cling to a principled constitutional tradition that makes real the Rule of Law.  Without that, we are destined, as Aristotle warned long ago, to fall into the "rule of men."