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“It may come as a surprise to the reader that the accepted role of federal courts in passing on the constitutionality of federal and state legislative enactments is nowhere grounded in the Constitution. It, too, was invented by Chief Justice John Marshall writing for the Court in 1803 in the famous case of Marbury v. Madison, discussed further below. Though it seems perfectly logical for federal courts to have this role, the point is there is no basis in the text of Constitution for it, and there is scant evidence the framers/ratifiers foresaw or intended that role.”
“The U. S. Constitution is the oldest written constitution in the world. England doesn’t even have one; the Magna Carta is no constitution. Our Constitution is entitled to be enforced as written. If we want to change it, the amendment process is there, requiring concurrence of two-thirds of both the Senate and the House, and three-quarters of state legislatures. That ratification of an amendment is a tall mountain to climb does not mean we should leave the Constitution entirely in the hands of the federal judiciary, to twist and interpolate at will. It is often said that liberals try to obtain in the courts what they cannot at the ballot box. Exactly so.”
“The approach that will be favored here is textualism – that the words, if plain, mean exactly what they say. If we don’t like the meaning, the solution is amendment, not judicial legislation from the bench.”
“Employing age-old legal rules of analysis, it is only when the meaning is unclear that we need resort to the intent of the framers, or the ratifiers, or the public-at-large when the constitutional provision was enacted. In no event do we resort to some federal judge’s innate sense of right, wrong, justice, or injustice. That’s why we have a written Constitution.”
“We are a nation founded on slavery, and it is an undeniable stain on our history, which we largely eradicated by the blood of 600,000 soldiers in the Civil War.”
“The Constitution didn’t prohibit it, but left voting eligibility, even for federal elections, to the states, a few of which – all interesting in the west: Wyoming, Utah and Washington — permitted female suffrage even before the 19th Amendment. Their reason was obvious: to attract women to the barren prairies and mountains. The states that had “Men to Match My Mountains” needed women to match their men.”
“Section 1 requires that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial proceedings of every other State.” It is this “Full Faith and Credit Clause” that it implicated when gay marrieds from one state seek recognition of their union in another. Avoidance of this is the rationale of the federal Defense of Marriage Act (DOMA), which exempts states from honoring gay marriages from other states if they wish. The author is opposed to gay marriage, but not since Marbury v. Madison has Congress been able to enact a law which flatly contradicts the Constitution. The courts have also engrafted an exception, without textual basis, allowing states to refuse recognition where the act done in the first state violates the “public policy” of the second. Amendment is the only answer, not judicial fictions.”
“This article prescribes the procedure for amending the Constitution, but two (2) provisions are declared unamendable. Slave trade cannot be prohibited before 1808, and no state can be deprived of its two (2) Senators unless it consents. What state in its right mind would?”
“Judicial constitutional contortionism is difficult to circumscribe. Is there something textually unclear about “Congress shall make no law … ?” Not only has the Supreme Court held that an amendment which begins “Congress” can actually apply to the states, they have also held that when the framers said “no law” they didn’t mean it. Thus, everybody assumes, and courts have held, that it is perfectly lawful for governments to forbid people from screaming “fire” when there is none in a crowded movie theatre, or “shoot that bastard,” referring to the candidate at a political rally, even though it might be a perfectly good idea, and often is at most such gatherings. But the language is unambiguous: “Congress shall make no law.” Perhaps the states are free to legislate in this area, or would have been, except the courts have contorted this plain limitation on federal power into one on the states as well. Perhaps what the framers/ratifiers were concerned about was a central censoring power like the crown of England. The colonies/states posed no such threat at the time. Consider, too, the Establishment Clause: “Congress shall make no law respecting an establishment of religion.” Is there any doubt, even the slightest, that all the framers were guarding against was an official state religion, like the Church of England in Jolly Old, which is what drove the Pilgrims first to Holland and then to Massachusetts? Yet the Establishment Clause is used today to cause moments of silence rather than prayers at public school sporting events. The very words – “In God We Trust” – on our coinage and money is in jeopardy for fear of offending a small coterie of atheists who dominate public discourse. If the intent of the framers/ratifiers is not controlling, surely textualism limits the Amendment’s interdiction to action by “Congress” effecting an “establishment of religion.” It may well be that “In Jesus We Trust” inscribed over the U. S. Capitol would be unconstitutional. “God” establishes no particular religion, but offends only a tiny minority of the citizenry, the atheists. No constitutional issue is raised.”
“Textualists, if not originalists, should have problems with modern Supreme Court jurisprudence on the right to bear arms. In District of Columbia v. Heller, 554 U. S. 570 (2008), a 5-4 majority of the Court held that the right to bear arms is an individual right protected from federal intrusion, and in McDonald v. Chicago, 561 U.S. 3025 (2010), Heller was applied to state and local governments through the Due Process Clause of the 14th Amendment; incorporation again. This will not stand. The text of the 2nd Amendment provides that: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” Both Heller and McDonald ultimately ignore that crucial prefatory language, and this is error. Lest we forget, the Revolutionary War era was a very different time. There was no American army prior to the Revolutionary War. There were only colonial militias, which had been called out in the French and Indian War just a decade before, and the American Revolution itself began in Massachusetts in 1775 with a battle between the Massachusetts militia and British regulars. “Well regulated” was no doubt inserted out of concern for the notorious lack of discipline within the militias, to the consternation of the British in the French and Indian War and to General Washington himself in command of the Continental Army. In any event, the militias are no more, nor is the right to bear arms, which can always be revived with a new constitutional amendment omitting the qualifying language. Heller and McDonald notwithstanding, the prefatory text in the Amendment cannot simply be ignored.”
“A separate problem is the propriety of 5-4 Supreme Court decisions enunciating significant constitutional rulings. It seems that the great issues of our time (Bush v. Gore comes readily to mind.) are decided by the barest of majorities, often pitting “conservatives” against “liberals” and leaving the public to wonder whether the law is an objective process of reasoning towards a neutral result, or simply the attainment of a desired result dressed up in flowery but incomprehensible legalese. In our lifetime, Justice Anthony Kennedy, it is often joked (Where’s the humor, exactly?), is the most powerful man in the country, because his vote determines every close case. Is this any way to run a Supreme Court?”
“First, those who argue for originalism invariably ignore a crucial word in this Amendment, which secures “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures … ” “Reasonable” and “unreasonable” are legal terms of art as old as the common law which we inherited from England. These are flexible terms, ever-changing, designed and intended to be evolutionary by the framers/ratifiers.”
“The tort law (personal injury and the like) defines negligence to be the “breach of a non-contractual duty to use reasonable care.” It used to be the case that railroads did not even have to post warning signs at crossings; people crossed at their own risks. Now whistles sound from oncoming trains, warning bells sound at the crossing, and often gates swing down to block vehicular traffic. In the old days criminal conduct was always regarded as unforeseeable and therefore never the responsibility of third parties. Today every mall’s parking lot is well lighted, with security patrols. For good or ill, these are the results of the development in the law of torts, judge-made law about what conduct is “reasonable” or “unreasonable.” It was no different in 1787. That is to say, what was “reasonable” was very different then, but everyone understood that “reasonable” was a very flexible concept, largely left in the hands of judges to determine. Ditto for “cruel” and “unusual” in the Eighth Amendment. They were guillotining people left and right in Paris shortly after the Constitution was adopted, but no one today would say beheading is an acceptable form of execution, nor was it in vogue in the colonies at the time of the Constitution. Surely the framers did not regard the death penalty per se to be “cruel” or “unusual,” since the Fifth Amendment requires Grand Jury action for “capital” crimes, meaning those punishable by death. The term is from the Latin, caput, ironically meaning “head.””
“Second, it’s difficult to conjure up a worse form of judicial legislation than the exclusionary rule, which the courts have designed as the remedy for violations by police of the Fourth Amendment. How many countless criminals have gone free by successfully moving to suppress the evidence against them on the ground that it was seized in violation of their constitutional rights? A Tennessean recently argued that a blood test involuntarily taken of him, showing he had no drugs in his system, should be suppressed so he could argue he was under the influence of PCP, and therefore less culpable, when he brutally murdered his girlfriend. You can’t make this stuff up. Ridiculous results undermine people’s confidence in the law, and most Americans – at least not those in the ACLU, New York or San Francisco — regard the American criminal justice system as a bad joke.”
“The courts have outdone themselves interpreting the Fifth Amendment, which applies to the federal government and provides in relevant portion: “No person shall … be deprived of life, liberty, or property without due process of law … ” The Fourteenth Amendment, which was enacted the year after the Civil War ended and applies to the states, contains virtually identical language. Federal courts have held that the Due Process Clause in the 14th Amendment incorporates most of the Bill of Rights against the states, even though it could simply have said so but didn’t, and that the Due Process Clause in the 5th Amendment incorporates the Equal Protection Clause in the 14th. By this contortion, the federal government is held to an obligation created solely for the (southern) states. Even more remarkable is what the federal courts have done to the term “Due Process of Law” in both Amendments. The term has obvious reference to adherence to proper procedures – that nothing should be done to a citizen civilly or criminally absent a valid judgment of a court after notice of the proceeding and an opportunity to be heard, or absent a valid legislative enactment after public consideration by the legislature and approval by the executive. The courts have turned this concept on its head by developing the conundrum known as “substantive due process,” which permits them to hold certain actions unlawful no matter how scrupulously proper procedures were observed. This is basically a license for judges to legislate from the bench. Whatever strikes them as “wrong” is held to be violative of substantive due process. A classic example of judicial legislation is Roe v. Wade, 410 U. S. 113 (1973), since which 60,000,000+ preborns have been murdered by their mothers and doctors. There the Supreme Court, by a 7-2 vote, invented a constitutional right to abortion — a corollary of the equally concocted right to privacy enunciated two (2) decades earlier in Griswold v. Connecticut, 381 U. S. 479 (1965) — as one (1) of the “liberties” protected from intrusion by the states in the 14th Amendment. In Griswold, the Court inferred the right to privacy from “penumbras emanating” from the Bill of Rights. You can’t make this stuff up. There was no procedural due process objection – all fifty (50) states had validly enacted anti-abortion legislation at the time of Roe, but that didn’t stop the Court from finding two (2) constitutional rights – privacy and abortion – that aren’t mentioned in the Constitution but were found to trump those legislative enactments. The Court compounded the constitutional error by inventing a trimester approach having no foundation in the record of the case; that is to say, no medical evidence in the case even bore on, much less supported, the trimester analysis enunciated by the court. The Court held that states could not forbid or regulate abortions in the first trimester, could regulate but not forbid in the second trimester, and could regulate and forbid in the third. While this has some facial logical appeal, it has no basis in the law, or the evidence in the case for that matter.”
“No area more than this so-called right of privacy illustrates the stalemate between originalists and activists, or underscores the political if not legal reason the originalists will not prevail in this debate. Try as they might to assert that there is no legal basis for a constitutional right to privacy, for the average American, it is our most treasured right. Few citizens will engage in conduct implicating the rights to free speech, religion or assembly in their lifetimes, but we all from time to time invoke our right to privacy, if only to shield our own questionable conduct from government scrutiny. The opposition to public camera surveillance, so successful in combating violent crime in Great Britain, is founded on a right to privacy originalists say doesn’t exist. This is where their argument fails, in the practical marketplace of ideas. It may always be so.”
“Ernesto Miranda confessed in writing to the rape of a teenage girl on a form which read, “I do hereby swear that I make this statement voluntarily and of my own free will, with no threats, coercion, or promises of immunity, with full knowledge of my legal rights, understanding any statement I make may be used against me.” The Justices nonetheless suppressed his confession and ordered a new trial because Mr. Miranda had not been warned in advance of, and voluntarily waived, his rights to remain silent and to counsel. He was retried without the confession, convicted and sentenced, paroled in 1972, and was stabbed to death in a barroom brawl in 1976. Quite a loss.”
“[D]issenting, Justice White said it best in Miranda: “The proposition that the privilege against self-incrimination forbids in-custody interrogation without the warnings specified in the majority opinion and without a clear waiver of counsel has no significant support in the history of the privilege or in the language of the Fifth Amendment.” He concluded with an ominous warning: “I have no desire whatsoever to share the responsibility for any such impact on the present criminal process. In some unknown number of cases, the Court’s rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it please him. As a consequence, there will not be a gain, but a loss, in human dignity.” Amen.”
“As mentioned above, the terms “cruel” and “unusual” are inherently flexible terms, like “reasonable” in the 4th Amendment, which only underscore the shortcomings of the originalist argument. By using terms like these, the framers/ratifiers were sending a relatively clear signal that future flexibility was their intention. Surely drawing and quartering was “cruel and unusual” in 1787 but hadn’t been in earlier times, and the framers/ratifiers understood, by using these terms, that future generations might have still more benevolent views. This is not to say that the death penalty is necessarily “cruel and unusual.” Note the linkage of the two terms. The death penalty may someday be deemed “cruel” but, until a large majority of states have banned it altogether, it will scarcely be unusual. This way it remains an issue for the states; judicial involvement in the issue now seems premature.”
“This Amendment has been the source of great controversy: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” It seems simple enough: the Bill of Rights is not an exhaustive list of our rights. The question is, then, what rights were among the “others retained by the people?” More specifically, were those rights frozen in time as of 1787? If so, what were they? If not, can new rights, like the right of privacy, be ascertained – or created – through judge-made law? The originalists of course opt for the freeze, and maintain vehemently that privacy is a modern judicial creature, and therefore a nullity not preserved in the 9th Amendment. This of course brings us back to the problem discussed above in connection with the 5th Amendment, and that is most Americans strongly embrace the right to privacy. It is our most cherished civil liberty. This is an argument the originalists cannot win. The originalists do appear to have the better of it, though, from a textual point of view. Rights “retained” by the people does speak to rights existing at the point in time the Bill of Rights were finally ratified, 1791. Yet another problem with the originalist approach is that no scholars or commentators have come up with a sensible, meaningful list of what rights might have been intended by the framers/ratifiers, other than private property rights. The First Amendment may preclude government control of my speech, but, if my neighbor doesn’t like what I’m saying, he surely can tell me to get off his property; if I refuse, I am a trespasser. The police who arrest me are enforcing his property rights, not abridging my speech rights. They incur no liability.”
“Like the 9th Amendment, the text of the 10th is straightforward: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.” Though no commentator has offered an exhaustive list of what those powers might be, this Amendment seems to work hand-in-glove with the limited grant of legislative power in Article I, Section 8. The 10th Amendment can most sensibly be viewed as a rule of construction. If the Constitution doesn’t expressly grant a power to the federal government, it lacks the power; there can be no implied powers. Anything which the document is silent on is reserved to the States, or the people, whatever that might mean.”
“The first rule of statutory (or constitutional) construction is that resort is not had to the drafters’ intent unless there is an ambiguity in the text; if the meaning is clear, the statute should be enforced as written. Here the import of the term “persons” is unmistakably not limited to former slaves, but the originalists would ignore this. In any event, we all know what has happened to the 14th Amendment. Its provisions have been invoked by women claiming sex discrimination, whites claiming race discrimination, and gays claiming orientation discrimination, and the courts have countenanced this.”
“Indeed, the Supreme Court held in 2015 that gays have the 14th Amendment “liberty” to marry notwithstanding the laws of many states against it. Obergefell v. Hodges, ___ U.S. ___ (6/26/15). The originalist position may well be correct, but the ship has long since sailed on this issue. Dissenting in Obergefell, Justice Scalia offered the definitive originalist rationale: “When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases” (p. 72). Unfortunately, not quite. The 14th Amendment, for good or bad, is a bulwark against all forms of discrimination, and that’s the way most people, who look to the Supreme Court as their ultimate defender, like it. But consider Justice Scalia’s warning in Obergefell: “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy” (p. 73).”
“In any event, we are brought full circle to Judge Bork. He urges an originalist position, without accounting for terms like “reasonable,” “cruel” and “unusual” in the text of the Constitution. He claims to be the victim of a vile slander – that he would limit the 14th Amendment to race claims — when that is the logical import of his position. In short, he seeks to have his cake and eat it too, and that is why the Senate ate his lunch. Textualism is the better approach to Constitutional interpretation.”
Buy the book here:
(UK) The Constitution Revisited: Originalism v. Textualism v. Whatever
(US) The Constitution Revisited: Originalism v. Textualism v. Whatever
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