The Gorsuch nomination, pitting Originalism against a “living Constitution,” is a fight for America’s soul — so pay attention because this is important!
Judge Neil Gorsuch’s nomination has brought to the fore the seemingly dry argument about two competing theories of Constitutional interpretation, Originalism and the “living Constitution.” Gorsuch himself is an “originalist” while the Democrat party arrayed against him puts its faith in a “living Constitution.”
Two recent essays both discuss Originalism and “the living Constitution”: Prof. Glenn Reynolds’ “Who the People?” in USA Today, and Prof. Mary Bilder’s “The Constitution Doesn’t Mean What You Think It Means” in the Boston Globe. Dry though the argument may seem to those not already steeped in the law, Progressives have turned this into the single most important issue facing our nation, so pay attention to this one.
Why is this so important? Because whichever of those two theories, Originalism or living Constitution, wins goes to the heart of how we will be governed in the future. It will determine whether we will be a Republic under a government with limited powers that the people control through the ballot box — as the people who drafted the Constitution envisioned — or whether we will be a nation pushed ever further left by non-democratic, extra-constitutional means, morphing to the point that the Constitution is meaningless and our Republic gutted in a brave, new, progressive, socialist nation.
The competing theories are easily explained. “Originalism” is a wholly apolitical theory holding that one interprets the Constitution as it was understood when passed. This is not inherently conservative or liberal, Republican or Democrat. It is merely adherence to a framework that allows for the people of the nation — not judges — to amend it.
Automatic adherence to Originalism explains why, for more than a century, there were no politics attendant upon confirming Supreme Court justices or judges holding other positions in the federal system. Judges were not ideologues, using their position to create new laws or Constitutional rights; they were just judges, applying the Constitution and the law as written to the facts before them. Progressivism was not ascendant in American politics until Woodrow Wilson was elected President in 1913. Only by the 1980s, after several decades of decisions from Progressive activist judges, did legal scholars coin the word “Originalism” to apply to the traditional judicial approach to the Constitution.
In an act of pure projection, progressives have falsely labeled Originalism as “conservative.” As Prof. Reynolds says in USA Today:
[C]ourts have a duty to enforce the Constitution as written, whether those results further the aims of a political majority or of a minority. When courts do so, even if they strike down laws passed by the majority, they are not engaging in judicial activism. They are simply doing their jobs. . . .
Arrayed against Originalism is the “living Constitution.” The very term is polish on excrement, much akin to “Democratic People’s Republic of [stick in the name of your preferred police state / dictatorship here].” Just as there is nothing Democratic or Republican about a socialist dictatorship of any stripe, there is nothing constitutional to be found in the theory of a “living Constitution.” The term is used to give an air of legitimacy to the wholly illegitimate.
Under the progressive socialist’s theory of a “living Constitution,” un-elected judges are free to ignore the original intent of those who crafted and voted in a referendum to pass our Constitution and take unto themselves the power unilaterally to proclaim new law or otherwise amend the Constitution upon their whim. The Constitution itself spells out, in Article 5, the only two means by which the Constitution could be amended — and neither of those include amendment by judicial fiat. The incredible genius of the system our Founders crafted, limiting the power of any one branch of government by a series of “checks and balances,” is lost through this judicial usurpation of power at the expense America’s citizens.
So how does Prof. Mary Bilder attempt to justify this obscene “living Constitution” assault on our republican form of government in her essay, “The Constitution Doesn’t Mean What You Think It Means“? To begin with, what a perfect title. At least there she’s not hiding the ball. The contents of her essay, though, are a different matter entirely. To be that honest would be to invite a second watering of the tree of liberty.