Friday, September 17, 2010

Thoughts for Constitution Day

Today is Constitution Day, the date in 1787 when our founding document — minus the first 10 amendments (the Bill of Rights) — was completed and presented to the Convention for consideration. It was ratified over the succeeding two years, eight months by the original 13 State legislatures, though only nine were required for acceptance.

I don't believe Jefferson was exaggerating when he wrote to Adams about the men gathered to consider it, saying: "It really is an assembly of demigods."

Anyway, history aside, as an amateur Constitutional scholar — very amateur* — I reject the common false alternative of "originalist" versus "judicial activist" interpretations.

Still, I'm much more sympathetic to the view that the Constitution has a specific meaning in a given context, one generally inline with the original ideas of Madison, and that emphasis should be given to that meaning. I also agree that "judicial activism" is nothing but a Progressive cover for social engineering through legal decisions.

The bottom line for me in Constitutional interpretation is a simple question: "Does a given interpretation protect the individual rights outlined in the document, or does it not?"

That, I believe, is consistent with Madison's vision — which still holds true — and allows for changing social and material circumstances over the ages. Because, though the applications change, the rights we have are constant over millennia, since they're based on human nature and the fundamental requirements of living.

*Side note: In Latin, amateur means "lover" and was originally intended to suggest not someone inadequately competent — which is also true of my Constitutional scholarship — but someone who did something for the love of the doing, not for money. Amateurs were actually viewed as often superior to 'professionals' who engaged in an activity solely for pay.

Words are interesting things, embedding not just individual thoughts but social mores.


madmax said...

That, I believe, is consistent with Madison's vision — which still holds true — and allows for changing social and material circumstances over the ages. Because, though the applications change, the rights we have are constant over millennia, since they're based on human nature and the fundamental requirements of living.

This is well said and I agree with it entirely. The problem is that this opinion is made entirely possible by Rand's philosophic achievements. Without her, no one approaches Individual Rights like this; certainly not Leftists but also not Conservatives. Your friend Michael Mollier has written a number of excellent comments on the failure of the Founders to grasp certain key elements relating to the nature of individual rights over at SOLO Passion. I really hope at some point in the future Michael starts writing books. He has a strong mind.

Jeff Perren said...

Thanks, Max.

I respectfully disagree that Rand is (or was) the only one to hold that view of rights, but I won't argue the point now.

I'd rather focus on the final part of your comment.

Michael Moeller is my best friend and he and I have had countless hours of spoken and written conversation on a wide range of topics. So, I know well that he has an extraordinary mind.

I've lost count of the number of times I've pestered him to publish. He assures me he'll get to that when he has the time, and I take him at his word.

Til then, I count myself uniquely fortunate to have access to that mind and character in private.

Ken said...

Is there a particular originalism to which you object, Jeff, or all of them together? ;-)

I agree that "original intent" is a shaky foundation, which threatened to commend the people to rule by the dead (Spooner pointed that out, but he's hardly the only one -- I think Jefferson said something along those lines). However, it seems to me that the whole point of having a written constitution is that words mean things, and those meanings don't change even when people adept at making words stand on their heads get hold of them. For that reason (to the extent that I am still willing to consider consenting to be governed by another at all, which tends to be less by the day), I like the "original public meaning" originalism advocated by Randy Barnett in Restoring the Lost Constitution.

I reckon I'll have to find my way over to SOLO Passion and see what's there.

Jeff Perren said...


One could certainly use the term "originalism" to mean something I would likely agree with. Likewise, "judicial activism" if that was interpreted to mean a very active approach to protecting the rights outlined in the Constitution, one of the reasons I reject both terms.

My views in this area, vaguely formed as they are, are very much line with those of Dr. Tara Smith. Google


for details. (I can't get a link to the pdf; it just downloads the pdf to my desktop.)

Here's a link to the abstract, which reads:

"In the debate over proper judicial interpretation of the law, the doctrine of Originalism has been subjected to numerous, seemingly fatal criticisms. Despite the exposure of flaws that would normally bury a theory, however, Originalism continues to attract tremendous support, seeming to many to be the most sensible theory on offer. This paper examines its resilient appeal (with a particular focus on Scalia's Textualism).

By surveying and identifying the fundamental weaknesses of three of the leading alternatives to Originalism (Popular Will theory, Dworkin's value theory, and Minimalism), the paper demonstrates that the heart of Originalism's appeal rests in its promise of objectivity. The paper also establishes, however, that Originalism suffers from a misguided conception of what objectivity is. All camps in this debate, in fact, suffer from serious misunderstandings of the nature of objectivity."

Ken said...

Thanks, Jeff. I have the paper now, and I'll look forward to reading the whole thing. The first few pages read very well indeed.

Speaking of judicial activism, one of the most amusing (and unconsciously revealing, I'm sure) comments I've heard in the last few years came from (I think it was) Ramesh Ponnuru at National Review. It was probably about the time of the Harriet Miers debacle; Ponnuru was on the radio with Prager or Medved or Hewitt or somebody, and somehow the conversation got round to Janice Rogers Brown (bust me if I've already told this story here) as a potential Supreme. Ponnuru expressed the concern that Justice Brown would be a "libertarian judicial activist." I thought to myself, "What's that -- someone who unmakes law from the bench? Where do I go to sign up for that?"

Jeff Perren said...

Great story, Ken, and no I haven't heard that one before.

Max and Ken (and anyone else),

There's one important element my post doesn't contain that just occurred to me while reading Smith's paper. Along with possible changes in social and material circumstances, our knowledge - in all areas - may grow over time and good Constitutional interpretation must take account of that.

A seemingly small point, but one that's crucial to objectivity in the law (as it is elsewhere). That's just one reason, though not a small one, that the typical "originalist" views are mistaken.

Ken said...
This comment has been removed by the author.
Ken said...

The other problem (I still need to finish Professor Smith's paper, got about halfway through it last night) is that even a foolproof, infallible scheme of Constitutional interpretation (were such a thing even possible) doesn't solve the 16th Amendment.

Let us assume, for the moment, that the 16th was legitimately ratified (I know that the legitimacy of its ratification has been questioned, and I have some thoughts of my own on the subject, but I'm not an expert on it so leave it aside for now). Income tax is no less a moral abomination (whatever one's moral code, assuming one's code doesn't admit the equivalent of Filmer, where whatever the state does is okay because it's the state) for having been legitimately ratified.

Jeff Perren said...


I agree; there's only one solution to the problem of the 16th Amendment: repeal.

There are other, less horrendous problems with the Constitution; it's not a perfect exemplar of all and only the individual rights we possess. It could hardly be that since the understanding of epistemology and ethics of the time (and the Founders) was deeply flawed.

Moral knowledge, like all other, grows (or. sometimes) decays over time.