Who protects the U.S. Constitution? You may say the National Archives in Washington, D.C. There, two 6.5 ton doors, 37 feet high, 10 feet wide and 11 inches thick protect it. That national artifact’s temperature and humidity are constantly monitored, and is also policed by guards who reprove over-zealous visitors who lean too aggressively on its protective case for a closer look. But I mean, who protects its most important component—its meaning?
Protecting the artifact is the easy part—the heavy doors and guards do a great job of that. However, they are useless when it come to protecting its meaning. If all the original documents were somehow destroyed, America’s constitutional governance could continue. But it could not continue if its meaning is destroyed. Woe to us if we do not protect the Constitution from the enemies of its sensible language.
With the death of Justice Antonin Scalia in 2016, the Constitution lost one of its greatest protectors. And how did he protect the meaning of the Constitution? With a set of ideas regarding constitutional interpretation known as originalism. It’s called originalism since it is the original meaning of the text—applied to present circumstances—that should govern judicial interpretation. Concerning judicial decision-making, Scalia, in his book, A Matter of Interpretation, promotes originalism and attacks “living” or “evolving” constitutionalism. He said, “There is plenty of room for disagreement as to what original meaning was, and even more as to how that original meaning applies to the situation before the court. But the originalist at least knows what he is looking for: the original meaning of the text.”
Scalia’s book is an attempt “to explain the current neglected state of the science of construing [interpreting] legal texts.” His thesis is that once the original meaning is abandoned, there remains no regulative principle to govern interpretation, and nothing to prevent judges from legislating their personal preferences under the guise of constitutional interpretation.
He was protecting against the rise of mostly French-inspired interpretive theories, theories adopted by the American Left and the Democratic party. These theories deny that truth and knowledge are possible—claiming there is no objective way to distinguish between history and myth or between fact and fiction. The Left employs these destructive interpretive theories because they know the Constitution must be circumvented if they were going to succeed in “fundamentally transforming” America. They know the Constitution is a barrier to their agenda of redefining the family, protecting pornography, limiting school discipline, banishing religion from the public life and protecting abortion.
Scalia attacked Living Constitutionalism by saying, “Perhaps the most glaring defect of Living Constitutionalism, next to its incompatibility with the whole antirevolutionary purpose of a constitution, is that there is no agreement, and no chance of agreement, upon what is to be the guiding principle of the evolution.” Belief in Living Constitutionalism means things change, and meaning morphs to become what it ought to mean from age to age. However, in reality, each time Living Constitutionalism is implemented we have imposed upon us some component of the Left’s agenda.
Using an example from the 1920’s, in pre-Living Constitutionalism America, Scalia declares, “we believed firmly enough in a rock-solid Constitution that we felt it necessary to adopt the Nineteenth Amendment to give women the vote. The battle was not fought in the courts, and few thought that it could be. Who can doubt that if the issue had been deferred until today, the Constitution would be unamended, and the courts would be the chosen instrumentality of change?” Today, because of Living Constitutionalism, the constitutionally prescribed amendment process has been circumscribed. Since the Left’s agenda cannot be won through the ballot box, they just turn to the courts to grant it to them. California voters in 2008 approved Proposition 8 to define marriage as one man and one woman, only to have millions of voters disenfranchised by a 5-4 federal court ruling overturning it.
Living Constitutionalism’s latest “gift” to the Democrat’s revolutionary and undemocratic agenda was Obergefell v. Hodges. Gay marriage was given national legal support by a 5-4 Supreme Court decision. The four dissenters went so far beyond refuting the majority opinion: they considered it as illegitimate. Justice Alito declared that the decision shows “the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.” Justice Thomas called the decision “at odds not only with the Constitution, but with the principle upon which our Nation was built.” Chief Justice Roberts said it was “an act of will, not legal judgment.” Justice Scalia’s objection referred to “this Court’s threat to American democracy.” Another source, Michael Stokes (First Things, October 2015) rightly states, “The Court is not just wrong, but has become a renegade institution that needs to be reined in by democratic forces outside of itself.”
Scalia implored America to halt these activist judges’ excessive use of powers and to bring the Court back into line by refusing to execute its lawless judgments. Alito, declaring that demands for judicial restraint are not enough, said, “Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed.”
Stokes goes on to say, the four dissenters “are challenging the legitimacy of the court as an institution. They are calling for action to be taken to restrain or repudiate the Court itself. . . . For better or worse—for richer or poorer—the Court has married same-sex unions to the constitution, and to an unabashedly activist and historically indefensible conception of judicial power.” Until the interpretive heresy, Living Constitutionalism, is rejected the Left’s undemocratic march through our political culture will not abate. The Left’s agenda is much more socially permissive and egalitarian than the actual Constitution or the legislative opinion of the American public. As Robert Bork pointed out, “The abandonment of original understanding in modern times means the transportation into the Constitution of the principles of a liberal culture that cannot achieve those results democratically.”
One means of protecting the Constitution is to never confirm a Supreme Court nominee who is not an originalist. Only those embracing this approach to legal interpretation have the principled reasoning to prevent the Constitution from being converted from law to politics, and to prevent judges from being converted from magistrates to politicians. The confirmation of Living Constitutionalist nominees cannot protect the meaning of the Constitution from the interpretive mischief fostered by reliance on sentiment rather than reason.
Steve Richardson
steverichardson1818@gmail.com
Jan. 29, 2023