The Liberty Papers

For roughly the first 150 years of the Republic judges in this country made legal rulings based on the intent and meaning of the Constitution as it was written. This concept, at the time, was not called Originalism. It was considered the norm for a country founded on the principle of the rule of law. James Wilson, Founding Father, signer of the Declaration of Independence, member of the Constitutional Convention of 1787 and Supreme Court Justice, wrote, “The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it.” Starting in the 1930’s, and perhaps somewhat earlier, this concept was turned on its head. Legislators and Judges began reinterpreting the meaning of the Constitution to suit attaining the ends they desired. This has become so common now that we have nearly forgotten that there might be another way to do things. It has allowed one of the most dramatic expansions of governmental power imaginable, especially with the use of the Interstate Commerce Clause.

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Innocuous, isn’t it? You may recognize, though, that it was recently used in Gonzales vs. Raich to rule that “medical marijuana” laws passed by the states were superseded by the Federal government’s laws controlling marijuana and that raising and selling marijuana, even with a prescription from a doctor, was still illegal. Even if the marijuana never crossed a state border. This is the legacy of the “living document” theory of constitutional law.

The three pillars that this country was founded on (see Bailyn, “The Ideological Origins of the American Revolution and Wood, “The Radicalism of the American Revolution”) were the rule of law, the use of reason and education and technology. Of these three, the rule of law was considered, by far, the most important. The American colonists, in fact, decided on a written constitution precisely because the usurpation of the rule of law was the primary factor leading to the Revolution. The English Constitution was (and is) a combination of historical documents, judicial rulings, “self-evident” truths and customs and practices. In the 18th century the Hanoverian Kings slowly but surely re-interpreted many principles of the English Constitution, altering the balance of power between monarchy, lords and commons (the three branches of English government). This had led to a tyrannical and oppressive state in both England and the colonies instituted by King and Parliament.

The Founding Fathers, as they were fighting for their independence, looked at the problems that had led to their oppression and need for rebellion and determined that one of the key problems was that the English Constitution was a matter of custom and subject to interpretation by individuals (see Bailyn, “Ideological Origins” and Brands, “The First American: The Life and Times of Benjamin Franklin”). They felt that the powers of the branches of government must be balanced and held in check in order to prevent unscrupulous men from interpreting, changing or distorting the constitution of the government. Since change would, obviously, be necessary at times, a process was provided that would ensure that all parts of government and society would be able to have input on, and agree to, those changes. They believed, based on the events of the 18th century, that a “living document” type of constitution was a significant danger to individual liberties and freedoms. Indeed, their liberties and freedoms had been destroyed by just such a situation. In order to guard against it happening again, the Founding Fathers determined that a single constitutional document, written in clear, plain language, would be necessary. This is the basis of that all important pillar of our system of government, the rule of law. Law, it was determined, must not be subject to the temporary and changing whims of the rulers, or, in our case, the rulers and the will of the majority (we can go into the fallacies of populist democracy some other time).

In the current argument for Originalism, many on the Right are arguing that Originalism is necessary in order to provide a known “social contract” that we can all agree to. This is a dangerous line of reasoning, which will be quickly demonstrated by those who argue for “living document” constitutionalism. The idea of the social contract arose in, and around, the ideas of utilitarianism. It was, indeed, the utilitarian answer to how to deal with the fact that generations succeeding the establishment of a government had not been able to agree to that government’s authority or powers. This is, indeed, one of the great flaws in Liberal theory (not modern neo-liberal, quasi-socialist theory, please don’t confuse the two). In Liberal theory the government is granted political power through the consent of the citizens, who abrogate some of their inherent rights and liberties in order to give the government those powers they deem necessary for effective government. This is the answer to the problem of government as a necessary evil (see Thomas Paine, “Common Sense” and Madison et al, “The Federalist Papers”). However, in the U.S. system of government, no such utilitarian solution (social contract theory) was necessary since the problem was solved by providing an amendment process. The amendment process was bounded by fairly stringent requirements to ensure that a small majority (the problem of 50%+1) could not change the Constitution when and how they desired, which would simply lead to the same problems that had been faced during the Revolutionary years. And, over the years, the amendment process was used quite successfully to make changes, even changes that the Founding Fathers would probably not have wanted to see, like popular election of Senators, the income tax, and prohibition of alcohol sales.

The amendment process, in fact, is the answer to the “living document” argument of constitutional theory. Much of the ills that the Left argues against today, the bureaucracy and congress that favor the corporate state over the individual, the military-industrial complex, the gross extension of police search and seizure powers, the intrusion into social issues that should be matters of purely local and state law are, indeed, the result of the “living document”. We can point at any number of laws and regulations passed by congress and any number of decisions made by the courts that have “interpreted” the constitution, rather than being based on its original meaning. Surprisingly, the Left does not (or chooses not to?) see that one is the consequence of the other. To use the words of an originalist justice, Janice Rogers-Brown:

We are heirs to a mind-numbing bureaucracy; subject to a level of legalization that cannot avoid being arbitrary, capricious, and discriminatory. What other outcome is possible in a society in which no adult can wake up, go about their business, and return to their homes without breaking several laws? There are of course many reasons for our present difficulties, but some of our troubles can be laid at the feet of that most innocuous branch – the judiciary…From the 1960’s onward, we have witnessed the rise of the judge militant. [Speech to California Lincoln Club Libertarian Law Council (Dec. 11, 1997)(“Libertarian speech”) at 5-6, 9]

This is the outcome of the living document. We have used it to justify anything and everything that we want our government to do, to make it our parent, our guardian, given to government our birthright. The answer to the “living document” theory of constitutional government is that if it can be interpreted essentially at will by justices accountable to none but themselves then we no longer have rule of law, we have rule of man. To those who believe that we are seeing the end of our Republic in similar fashion to the end of the Roman Republic, I say you are wrong. We are seeing the end of our Republic because we have allowed the elites to do to us, voluntary, in the name of progress, that which we fought a Revolution against in the first place. We have allowed them to replace the constitution and the rule of law with the will of the majority and the rule of man. The English Glorious Revolution was overthrown exactly so in the 18th Century. And the American Revolution is being, and has been to large degree, overthrown by the rule of man. Those who refuse to learn from history are doomed to repeat it.