Starting in the 1960s, jurists and scholars such as ex-New Deal liberal Raoul Berger, Supreme Court nominee Robert Bork, and Attorney General Edwin Meese charged the liberal activist justices of the Warren Court and the Burger Court with usurping legislative authority in violation of the intent and design of the Constitution. Sticking to Progressive “living constitutionalism,” liberal strategists pinned the “originalist” label on critics of judicial activism.
Even as it faced vigorous criticism, originalism was rightly recognized as a legal-theoretical problem worthy of philosophic and historical investigation. It was hard to deny, as constitutional scholar Richard Kay observed, that the issue of adherence to original intent was “vital in a political system where power is delegated and limited by a constitution.” In the view of historian Johnathan O’Neill, the doctrine’s initial expositors such as Berger “made originalism impossible to ignore.”
Perhaps no concept in American politics is more familiar and appealing—yet more vacuous of meaning—than “the rule of law.” A close rival might be the equally indispensable but ambiguous word “constitution.”
While rhetorical ambiguity sometimes proves useful in politics, sustained disregard of the meaning of these fundamental ideas has a demoralizing effect on republican government. Notwithstanding the pragmatic, if not providential, ability of the American people to select worthy leaders through most of their history, to misunderstand or ignore fundamental principles of law and constitutionalism is to begin to undermine what Abraham Lincoln identified as “the strongest bulwark of any Government, and particularly of those constituted like ours”—namely, “the attachment of the People.”
James E. Fleming, an orthodox confessor in the moral-philosophic church of Ronald Dworkin, has a problem. He declares himself an avowed enemy of constitutional originalism in any form on account of the debilitating effect it has on the American public conscience. Yet Fleming contradicts himself when he defines “the originalist premise” as the “assumption that originalism, rightly conceived, has to be the best—or indeed the only—conception of constitutional interpretation.” Why does it have to be? “Because,” writes Fleming, “originalism, rightly conceived, just has to be. By definition. In the nature of things—in the nature of the Constitution, in the nature of…
The defeat of the Democratic Party in the 2016 election is an astonishing and unmistakable repudiation of the “transformation of America” to which Barack Obama dedicated himself as constitutional chief executive. Obama’s transformation of America disavowed the natural law principles on which the country was founded. For more than a century Progressive reformers assiduously indoctrinated Americans in the philosophy of pragmatist relativism. Faithful to the Progressive tradition, Obama appealed to pragmatism to rationalize the transformation of America. While post-mortems are being prepared to explain what went wrong, it is pertinent to reflect on how Left-liberal opinion makers understood the “once-in-a-life-time” opportunity that Obama’s election provided to achieve long sought progressive goals.
The Framers of the Constitution recognized that in a country as extensive as the United States, compromise between partisan groups was the price of Union. The zone of acceptable compromise had constantly to be calculated and reconsidered because Americans put the Constitution to practical use by using it as a partisan instrument to win substantive policy conflicts.
Gold and Freedom is an ambitious account of Southern Reconstruction after the Civil War interwoven with national currency and tariff policy. Nicolas Barreyre, Associate Professor at the École des Hautes Études en Sciences Sociales, views Reconstruction as a reordering of the American republic that exceeded in scope the constitutional-legal problem of restoring the former Confederate states to the Union. According to Barreyre, the Southern project called for a redefinition of the American nation, citizenship, the relationship of the people to the body politic, and “the economic model and the type of social relations on which it depended.” In short, “it is…
In his last public address, April 11, 1865, President Abraham Lincoln defined the problem of Reconstruction as how to end the war, re-inaugurate the national authority, and get the seceded states back into “their proper practical relation with the Union.” No provision in the Constitution explained how this should be done. There was no government to make a treaty with as in a war between independent nations. Lincoln observed: “No one man can give up the rebellion for any other man. We must simply begin with, and mould from, disorganized and discordant elements.” In Statesmanship and Reconstruction: Moderate Versus Radical Republicans…
Charles Austin Beard (1874-1948) was a more complicated and interesting thinker than the Progressive sage commemorated during the centennial of his An Economic Interpretation of the Constitution of the United States. Perhaps that’s the problem with writing a book with a thesis so simple and straightforward as to discourage careful consideration of the work as a whole.