Originalism vs. the Living Constitution, the Filibuster, Executive Orders, and the Regulatory State

The untimely passing of Justice Scalia and the nomination and confirmation of Justice Gorsuch to fill the vacancy on the Supreme Court has raised several interesting constitutional and legislative issues.  Originally intended to be the court of last resort for constitutional cases relating to our founding document, the Supreme Court has become a third legislative body that reflects the power structure in the Senate and the Executive Branch.  Rather than examine the legal scholarship and honesty of the nominee, senators on both sides of the aisle attempt only to determine whether he or she will support a specific political agenda. 

To most lawyers, the written word matters, especially in a contract that spells out the obligations, restrictions, and permissions that bind those who sign it.  An individual would be ill-advised by counsel to sign a “living” contract . . . one with terms that could change at the whim of the interpreter at any given time. Legally, the entirety of a binding contract resides within the four corners of the paper on which it is printed.   Representatives of the thirteen original states who signed the Constitution, as well as the citizens of each state through their ratifying conventions, had the very real expectation that those words would be honored and adhered to as the basis of the rule of law, applicable to all, equally, unless amended or revoked according to its terms.

Unfortunately, through man’s fallibility, our nation is now guided by a rule of law more akin to that found in “Alice in Wonderland” than the masterpiece written by our founders two centuries ago.  Too many Judges seems to have no qualms about manipulating the law to suit the agenda of their political masters . . . . casting us all adrift on a sea of legal uncertainty.  In judicial decisions, facts and logic are being replaced by feelings and emotions.

In the constitutional realm, the chasm is as deep and wide as the divisions in society.  The conflict is one of “originalism” versus the concept of the “living constitution”. 

Originalists believe in using the meaning of the words written in the Constitution by our founders to determine constitutional law.  The only reference book necessary is a dictionary of the times, which provides the definition of words used in the 18^th century when the document was written.  Those words, phrases, and sentences articulate a philosophy of governance that protects and secures the Natural Law rights of sovereign individuals from the tyranny of an all-powerful central government.   

Those who believe in the “living constitution” prefer to interpret the written words in the context of our current times.  They demand changes to the meaning of the written words in the Constitution justified by the fact that that document predates the existence of airplanes, the internet, the internal combustion engine, and all other innovations that are part of our lives today.  Judges are, therefore, allowed to infer meanings to the text of the Constitution based on how they themselves interpret those words and justified by their world views and societal values.

The fundamental philosophy of the Constitution, however, is clear and undeniable.  It protects the Natural Law rights of the individual and the sovereignty of the states by ceding to the federal government limited powers related only to the nation’s general welfare the benefits of which extend equally and directly to all.  To deny this fact, even after a cursory reading of the Constitution, is to engage in grave intellectual dishonesty. 

But is that not what we expect from liberals who have no problem redefining many words to suit an agenda.  A foreign national illegally in the United States has become an “undocumented immigrant” as if the only legal issue is some vague problem with his paperwork.  Cloaking themselves in the First Amendment, protestors (who are best described as thugs and fascists) deny those same rights to legally-assembled citizens they describe as fascists.  And contrary to facts learned in eighth grade biology, they redefine carbon dioxide as a poison gas to support a scheme for worldwide wealth redistribution.  We have entered the George Orwell era of “doublespeak”.  The meaning of a word is fluid, temporary, and designed to control of human activity, eliminate individual freedom, and increase the wealth and power of the ruling oligarchy.

Justice Gorsuch’s judicial philosophy in most ways mirrors that of Justice Scalia.  Both are considered Originalists or Texturalists.  As such, his judicial decisions are more likely to favor limiting the authority of the federal government and upholding the separation of powers outlined in the Constitution.  For instance, the Constitution provides that all legislative powers are vested in Congress.  Nevertheless, our gigantic federal bureaucracy routinely creates law through regulations even though it lacks the constitutional authority to do so. 

For this reason, Gorsuch was vigorously opposed by the Democrats who rightfully believe that it will be much more difficult to get Supreme Court rulings that expand government size and power at the expense of the rule of law.  It was necessary for the Republicans to use the “nuclear option” to secure  confirmation as the Democrats intended to filibuster to delay a vote in the Senate. 

In an article titled “The Filibuster:  A Primer”, Robert Levy, Chairman of the Cato Institute and a constitutional scholar explains the history and application of the filibuster.  In summary, he writes the following:

The gripe against the filibuster is that it’s undemocratic because it stifles majority rule.  That misses the point.  We are a republic, not a democracy, and our Constitution is intentionally undemocratic.  The Framers were concerned about tyranny by the majority.  Recent majorities, on both sides of the aisle, have proven that those concerns are justified.  Majority parties have killed bills in committee, refused floor votes, and blocked amendments – essentially denying the minority any meaningful role.  The filibuster is a partial counterweight to those problems.

Furthermore, the Framers wrote a constitution replete with protections that limit majority rule.  To name just a few:  we have limited and enumerated federal powers, two senators from each state, the Electoral College, and the Bill of Rights.  And note that the Constitution requires a 2/3 vote to propose constitutional amendments, override vetoes, approve treaties, impeach the president, and expel a congressman.  The filibuster’s supermajority requirement may be undemocratic, but that’s precisely why we have it.

Dr. Dan’s guest on Freedom Forum Radio this weekend is noted constitutional scholar Robert Levy, chairman of the board of directors at the Cato Institute.  The topic of discussion will cover Originalism vs. the Living Constitution, the filibuster, executive orders, and the regulatory state. 

Robert Levy joined Cato as senior fellow in constitutional studies in 1997 after 25 years in business.  He is also a director of the Institute for Justice, the Foundation for Government Accountability, and the Forum Club of Southwest Florida.  

Levy served as co-counsel to Mr. Heller in District of Columbia v. Heller, the successful Supreme Court challenge to Washington, D.C.’s, gun ban that was ruled unconstitutional. His latest book is The Dirty Dozen: How 12 Supreme Court Cases Radically Expanded Government and Eroded Freedom.  The Dirty Dozen is a fascinating discussion of the twelve worst Supreme Court decisions of all time.

Part one of this fascinating and timely three-part interview begins this weekend, Saturday and Sunday, April 22-23,  on WJRB 95.1 FM and streamed live over the Internet.  Part two airs Saturday and Sunday, April 29-30.  Part three will are the weekend of May 6-7.  All programs are available by podcast following air time here.