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Originalism as Ideology

Earlier this month, I had the distinct honor of appearing on a panel (alongside John McGinnis and Charles Kesler) at a terrific conference sponsored by the Jack Miller Center and the Lynde & Harry Bradley Foundation. Our panel topic was, “Exploring Originalism.” This slightly edited transcript of my remarks appears with the sponsors’ kind permission.

I propose to explore originalism as ideology. What I mean by “ideology” is not partisan commitment but the original, Hegelian meaning: an idea whose progenitors deny, or cannot bring themselves to reflect upon the contingent conditions of that idea’s origin or creation—a thought or theory that parades around as timeless truth, as opposed to recognizing that it is a child of its time. In my view, originalism has been way too ideological in that sense. It would benefit from reflection and candor.

Originalism originated circa 1982 as a bit of a good-natured joke. Conservatives needed some respectable way of telling Justice Brennan and Justice Marshall, you can’t just make things up. “Strict construction” had failed (too Nixonian); so had Alex Bickel’s “passive virtues” (too fusty, and futile after the 1960s and certainly after Roe). Originalism looked like it might work. It seemed to offer a big tent for conservatives of all stripes and, at the same time, a program beyond partisan ideology and culture wars. This isn’t just about abortion or the death penalty, originalism seemed to be saying: we have a neutral program—a method of interpretation. Obviously, that was never quite true; but it had a certain surface plausibility.

It soon turned out that the originalist program had to be reformulated—not once, but repeatedly. Some of the reasons were theoretical; others political. Initially originalism was supposed to be about adhering to the Founders subjective intentions. That position is hard to defend as a serious theory and, worse, seems to be saying that Brown v. Board was probably wrong. Michael McConnell solved that latter problem in a famous article; and originalism migrated to a theory of “original public meaning.” That position is still au courant. But it, too, has been modified—again, for a combination of political and theoretical reasons. As for politics: in academic precincts, there must be a right to same-sex marriage if you want to remain part of the conversation. And there is, Steven Calabresi and other noted originalists purport to have shown: right there in the Fourteenth Amendment.  Other originalists have been cagier, although I wonder how long that can last.

On a more theoretical note, straight-up “public meaning” interpretation isn’t how we do constitutional law, most of the time. We can’t do it that way because the Constitution isn’t written that way and so not meant to be understood that way. The document doesn’t partake of the prolixity of a legal code; all too often, the text just gives out. At that point, many originalists now say, we may legitimately do constitutional “construction.” Some contributions in that vein (like Keith Whittington’s) discuss things that actually happened, like the New Deal; but most read like they were co-authored by Ronald Dworkin and your general contractor. Many are obviously intended to shore up supposedly originalist foundations against liberal attacks of the “what about gay marriage” variety. You do this by entering originalism’s “construction zone,” and don your hard hat.

This is not to say that originalism is the work of partisans and opportunists. (If anything, academic originalists take their theories way too seriously.) It is to say, though, that originalist methods that don’t fit the demands of the times will die on the vine, regardless of the deep insights of linguistic theory.

Serendipitously, the selection process has produced some good. John McGinnis and Mike Rappaport now defend “original methods originalism.” If I understand it right, it means that we can and should read the Constitution with the aid of interpretive canons and the legal understanding of that time, because that is what the authors would naturally have assumed. I take that to mean that we can and should go about this business the way Hamilton and Marshall & Co went about it—even though they, unlike many of our originalists, had never heard of Ludwig Wittgenstein; could not (for lack of computers) perform the linguistic data-mining that is now the frontier of originalists’ endeavors to discern “public meaning”; and in these and many other regards were manifest idiots. I do wonder, though, why it took 35 years to re-discover that sensible approach, and whether the rivers of ink that have flown in the interim by way of methodological, meta-theoretical disputation have been worth it.

If you over-invest in one thing, you are bound to under-invest in another. Obvious example: if you cannot connect semantic theories to a substantive theory of the Constitution and of constitutional politics, you will miss something important. There are good reasons why M’Culloch v. Maryland starts with a disquisition on the nature of the union—not on the original public meaning of “bank,” or “incorporation,” or “necessary.”

Another crucial thing we have under-invested in is constitutional doctrine. By doctrine, I mean abstract-concrete rules, derived from and traceable to the Constitution and warrantable by it; but not by some mechanical method of interpretation or for that matter construction. The rules are abstract in the sense that they don’t respond to constituency demands or transient perceived needs; they are fairly general ordering rules. They are concrete in the sense that they provide rules of decision for a recurrent set of legal and practical questions, where the Constitution itself doesn’t quite give you an answer.

Constitutional law, in real practice, is 90 percent doctrine—an anti-delegation doctrine, an Ex Parte Young doctrine, a sovereign immunity doctrine (inferred, by originalists no less, from a “silent postulate” of the Constitution against its explicit text), a federal preemption doctrine (with four parts), a dormant Commerce Clause doctrine (also with four parts), and so on ad infinitum vel nauseam. Those doctrines serve to make the Constitution work as well as it will. You cannot derive or improve them through garden-variety interpretation. You have to ask different questions:  What is the real-world concern to which this doctrine was or is supposed to be the answer? Where did it come from, and how did it develop?  How well does it work, by way of giving constitutional structure and content to our politics?

Some bona fide originalists do amazing work like this—Aditya Bamzai, Caleb Nelson, John Harrison (the University of Virginia school of originalism, which is where they all teach). And you can find like-minded scholars Stanford (McConnell), Chicago (Baude), Duke (Sachs), even NYU (Epstein). But to many originalists who are invested in the label, all this sounds too loose, too common law-ish (and at least to the early originalists, that was the enemy: common law thinking). Whenever doctrine rears its head, many originalists retreat into clause-bound textualism, grim formalism, and legal positivism—anything that looks like interpretive “method.” Justice Scalia often made that move (too often, to my mind). John Manning, Jonathan Mitchell, and other scholars make the same move all the time and out of conviction—even as equally credentialed originalists move in the opposite direction of constitutionally commanded transgender bathrooms. Yet other determined originalists flee into semantics. (Pity if you’re just a constitutionalist, and woe to you if you doubt the method that produced the outcome either way: thou must be the right kind of originalist.) As a result we have become as creative in multiplying originalisms as Bill Brennan was in cranking out new rights, and the meta-theoretical ground has proven no safer or more neutral than actual constitutional argument.

I fear that this has become a real-world problem, especially for the Supreme Court. Regardless of the exertions of academic originalists, no one in the real world continues to believe judicial originalism’s claims to neutrality. And when judges then try to re-vamp or re-create credible constitutional doctrines (in a heated political environment), it looks like they are making things up. The enterprise would look, and would be, more candid and credible without the methodological razzle-dazzle.

To start with an easy example, the re-discovery of the Second Amendment was supposed to be an originalist victory: hurrah for the text, at long last. But it cannot possibly mean bazookas for the deplorables, or machine guns for nutcases in crowded places. The right to bear arms needs some halfway coherent doctrines, just as does freedom of speech. That point should have been obvious at the front end.  Instead, the Court’s originalists stomped their feet on the text, and the High Court has since let the lower courts flounder around. The predictable result has been a series of tactical adjustments to shifting political demands and sensibilities, accompanied by partisan agitation and academic-originalist disputes about the true and correct semantic method that will yield the true and correct original meaning of “arms” and “bear.”

A far more consequential example: the separation of powers, and the “unitary executive.” We were supposed to celebrate Chadha (the “legislative veto” case) and we weren’t supposed to question the “unitary executive” because President Reagan and his Justice Department fought it and, more important, because it wasn’t just a theory or doctrine but came directly from the Constitution’s text: it vests the Executive Power, all of it, in a President. That uncompromising position makes it hard to entertain second thoughts about presidential government, as many serious people now do; or to put the “unitary” piece of the puzzle together with an executive state that’s obviously out of control. (This may help to explain conservatives’ absurd fixation with administrative law doctrines that probably do not matter all that much.  Call it Auer originalism.)

A final example:  the Supreme Court, emphatically including its conservative-originalist wing, operates with federalism doctrines and dice-loading canons that were fabricated from whole cloth during the New Deal. They are mostly calculated to preserve federalism’s “balance”—a notion nowhere to be found in the Constitution, and antithetical to it—and to protect the “states as states” against Congress. That is not a good way of understanding what’s going on between red and blue state blocs, or between them and the feds. Re-thinking this universe, however, would require serious thought about the constitutional structure and a wholesale doctrinal revamp—and no individual clause or interpretive method offers refuge or cover. And so, no.

You cannot get back to substantive constitutional argument so long as you’re chasing the mirage of a timeless Constitution above all politics. To my mind that program has lost a great deal of traction. Perhaps more important, though, it’s perversely anti-originalist:  the Constitution was not meant to be read or used that way.

Allow me a McGinnis/Rappaport move: among the canons John Marshall knew very well was that the nature of the instrument tells you how to read it. The Constitution was written to be adapted to the varying crises of human affairs, by way of doctrines that make the instrument work under radically changed conditions—even as the Constitution itself remains the same. It is hard to see how that could not be a politically charged affair; and in fact, it is meant to be. The Constitution’s structural provisions, as well as its rights provisions, attract political constituencies, which might as well act accordingly and are expected to do so. There is nothing untoward about it—quite the opposite: this is what constitutionalizes our politics. That’s a good thing. A Constitution that’s no good for anyone in the real world soon will be truly dead.

A final thought: the originalist impulse to de-politicize the Constitution isn’t new; it is inherited from the most wretched traditions of American jurisprudence. The capstone course for law students who want to go places is called Federal Courts. It says, in the canonical textbook originally published in 1954 and taught to this day: we have a method, called Legal Process, that is above and beyond politics. Politics is too contentious: it might involve Republicans. And first-order questions about the powers of Congress have mostly been settled, have they not? We should simply ask, what institution is best qualified to make this or that decision—and surely, we can all agree on that. In the course of teaching my students the difficult Federal Court mechanics, I try to impress upon them how deeply ideological this whole enterprise actually is. It was invented by hard-core New Dealers. It screams at you, Franklin Roosevelt. And the answer to the question (who is best qualified to decide?) is always, an administrative agency, with an occasional friendly assist by the Court.

This is what originalism’s founders imbibed in law school, at the absolute nadir of American jurisprudence. They rebelled against it by way of creating something like Legal Process with a minus sign: we have a better method that will be really neutral and take the politics out of constitutional argument. Ever since, too much originalist theory has been an increasingly exquisite refinement on methodological margins.

That project has been serviceable and, in some ways, stupendously successful. But it cannot be the be-all and end-all of serious constitutional argument. And once you think about where originalism came from and what it was supposed to do, you begin to suspect that it may have run its course.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on April 23, 2019 at 09:14:10 am

I love McConnell's research. Though I'm not sure if it vindicates Brown as it was intended. If I understand it, first it shows that the Privileges or Immunities Clause was *the* substantive clause that was intended to vindicate such an equality right. The Equal Protection Clause, accordingly is procedural,; it forces the executive's hand to enforce whatever general laws are already on the books like assault, battery, homicide, etc.

Second, what McConnell's research demonstrates is the 14th Amendment gave the power to CONGRESS to outlaw segregated schools and Congress at that time choose not to. But they could have. And certainly a later Congress would be free to.

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Jonathan Rowe
on April 23, 2019 at 09:53:21 am

Just so. “As a result we have become as creative in multiplying originalisms as Bill Brennan was in cranking out new rights, and the meta-theoretical ground has proven no safer or more neutral than actual constitutional argument.”

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Mark Pulliam
on April 23, 2019 at 10:09:42 am

Greve makes some interesting points, but I disagree with this one: “The right to bear arms needs some halfway coherent doctrines, just as does freedom of speech.“ Actually, both the First and Second Amendments contain built-in exceptions, mostly because of the tiny often-overlooked definite article “the.” As in “the freedom of speech” which most originalists agree was the degree of freedom of speech that existed in the U.S. as of 1789. Exceptions for libel and slander were well-accepted back then, so they are still legitimate now. Similar logic applies for “the” right to keep and bear arms.

A while back, I wrote a blog post at the Originalism Blog titled, “There Are Not Supposed to Be Any Unwritten Judge-Made Exceptions to the Speech and Press Clause.” This still seems correct to me.

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Andrew
on April 23, 2019 at 10:16:02 am

Michael:

"you had me at [Ideology]."

Although given the proliferation of *original* species of *originalism*, it may have been more apt to use the plural form of the noun.

Marshall's dictum on "the nature of the thing" strikes me as more than apt. what were the issues, the political problems that COTUS sought to address / contain / foster? Being eminently practical men, it is unlikely that they believed they were *crafting* a charter that would resolve for all time ALL manner of as yet to be defined political problems.
I am quite often taken aback at the contortions performed by originalists, of various stripes, to provide an all encompassing theoretical explication of COTUS interpretation / construction and other forms of intellectual legerdemain.

Face it, political life is fraught with too many unknowns, further complicated by an endless recurrence of Oakeshottian collisions NOT susceptible to general judicial prognostication / resolution; indeed, it is not susceptible to even "political" resolution.

All such attempts at "general" theories fail (even Einstein's General Relativity is subject to some serious scrutiny). At best, they provide guideposts as we stumble along through changing times.

Yet, we already have some guideposts - Marshall's dictum above and I would add McGinnis and Rappaports "Legal terms of Art" thesis, which I view as a subsidiary of Marshall's dictum.

Does this make it a *living* constitution; NO, but it may be said to be still breathing.

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gabe
on April 23, 2019 at 10:31:37 am

The Constitution was written to be adapted to the varying crises of human affairs, by way of doctrines that make the instrument work under radically changed conditions—even as the Constitution itself remains the same.

This understanding transforms our written constitution into the UK's unwritten one, that can be altered at will by a US "parliament" that includes the Supreme Court. Unless the Court enforces absolute, unqualified "No"s in the areas of Congressional ultra vires and individual rights to be free from government restriction based on immutable meanings (or non-meanings) of the words in the document and leaving "judicial interpretive updating" to We the People via amendments, then the entire accomplishment of the Founders was in vain. Perhaps that is history's lesson, that the ideal of a written constitution simply cannot be realized here on Earth by mortal men.

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QET
on April 23, 2019 at 10:41:54 am

I agree with parts of this. To an extent constitutional interpretation must be a kind of common law interpretation. But I disagree with the hostility at a "timeless Constitution above all politics." The Constitution's original meaning isn't the politics of today. And yes, sometimes it allows things that we today wouldn't do (like firing squads for execution). But the Constitution rarely mandates things, instead it prohibits bad things leaving the affirmative choice to the legislature. This leaves room between the politics of today (what Congress should do), while still allowing the Constitution to prohibit things that are fundamentally unjust.

Originalism may not be the "be-all and end-all" of constitutional argument, but it should be the starting place.

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Devin Watkins
on April 23, 2019 at 11:10:16 am
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Andrew
on April 23, 2019 at 11:29:55 am

And even that process doesn't guarantee results consonant with the ideal of the preamble - see Amendments 16, 17 and 18....

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OH Anarcho-Capitalist
on April 23, 2019 at 12:22:51 pm

"Originalism may not be the “be-all and end-all” of constitutional argument, but it should be the starting place."

Agreed!

I differ with some here who read Greve to be advocating the equivalent of an unwritten constitution. I don;t see that at all; rather, it would seem that Greve is simply arguing that ideological explication of COTUS, even an originalist ideology, is bound to miss and / or misread the meaning, intent and, perhaps, even the structural integrity of the document as it pursues its own "vision" of what (Surely, Sir) the Crafters must have intended / written.

Funny, in the past I have criticized modern SCOTUS jurisprudence for devolving to "common law." Over time, I am beginning to realize that, of necessity, (aka: of *politics*, properly understood) adjustments akin to common law decisions, may very well be inescapable.
This does NOT mean that there are not "constants", timeless elements , yes, even timeless truths to be found in COTUS; only that we ought to be somewhat more circumspect in enunciating those "truths." But they are there and I doubt that Greve would dispute that.

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gabe
on April 23, 2019 at 12:44:16 pm

I simply could not resist given the photo accompanying Greve's essay which shows images of books on the 4th Amendment and Searches.

Now hear this:

https://hotair.com/headlines/archives/2019/04/court-says-tire-chalking-parking-enforcement-officers-unconstitutional/

"The U.S. Court of Appeals for the 6th Circuit, in a first-of-its-kind decision, ruled that marking a car’s tires to gather information is a form of trespass requiring a warrant, similar to police attaching a GPS to a vehicle to track a suspected drug dealer."

Is this originalism or a new fangled form of common law - or simply OUTRIGHT STUPIDITY?

Whatever, and I do not have the acquaintance of the Jurist, but I would argue that this finding is the inevitable result of an ideological disposition toward COTUS interpretation / construction.

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gabe
on April 23, 2019 at 16:27:30 pm

By originalism, we mean applying the same rules that we apply to the first amendment and applying them to the second amendment.
We would never deny first amendment rights to ex-felons after they're released from prison, so we also have to restore second amendment rights upon release from prison.--no background checks.
We would never allow waiting periods to buy a newspaper or bible, so we don't allow waiting periods for firearms or ammunition, or silencers, etc.
We would never allow excise taxes on newspapers or bibles, so we don't allow them on firearms or ammunition, or silencers, etc.
We would never arrest someone for carrying a newspaper or bible in their backpack or purse without a license, so we have to allow people to carry guns in public in their backpacks and purses without a license.
We allow people to own the same newspapers and bibles as the police, so we must allow people to own the same guns as police. If a police book isn't a weapon of war, than a police gun isn't either.
None of these gun-control laws have been struck down yet, so originalism hasn't even gotten started.

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OG Idolatyr
on April 23, 2019 at 18:19:15 pm

Doesn't anyone in this conversation besides me believe that there is such a thing as an eternal, universal, absolute Truth or principle governing Mankind? To which we are all held accountable? Something related to the laws of Cause and Effect? As in Liberty?

The U.S. Constitution was built on such a principle, and although the founders framed our Constitution so it could be peaceably altered or abolished and rewritten if we decided such action necessary. John Adams and James Madison commented on the need for Americans to check back to "original principles" from time to time to avoid wandering off into a ditch.

Recurrence to original principles is something that isn't an "ism". A long time ago, when I was young and clueless, I remember my college history professor talking about historical theory, or the various ways of studying the past. Okay, why not. But when I read the essays assigned for the class, the writers--pedigreed academics all--argued about the superior nature of their own theories and against everybody else's. This seems silly to me.

And that is how this conversation strikes me. It is time to go back to the original principles, digging down deeper than the principles of government of the United States. Down to the bedrock of Judeo-Christian Natural Law, which teaches that there are some things that never change. And Truth is one of them.

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Karen Renfro
on April 23, 2019 at 18:37:24 pm

"Originalism" is the principle that strict scrutiny applies to all the amendments, including the second amendment. So all the principles we apply to the other amendments to strike down oppressive regulations, we must also apply to gun-control regulations--not just speech-control, voting-control, and abortion-control regulations.

That means no background checks, waiting periods, licenses to carry in public, excise taxes, limits on magazines, gun-free school zones, etc. None of these gun-control laws have been struck down, so originalism, i.e. strict scrutiny for gun regulations, hasn't even begun. Saying that originalism has accomplished its goals is like aborting your daughter after they learn to walk.

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Learning to walk with the constitution
on April 23, 2019 at 18:51:26 pm

Telling me you found one gun-control law that saves lives and therefore they're all constitutional, is like telling me you found one jim-crow that saves lives, therefore they're all constitutional. We don't approve all speech-control laws just because we want to prevent libel and fraud, and we don't approve all gun-control laws to prevent people from owning weapons of war.

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Jane Ravenclaw
on April 23, 2019 at 20:51:41 pm
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anony
on April 25, 2019 at 08:38:32 am

ORIGINALISM - Respectfully, I disagree MisRule of Law's asertion that "Michael Greve pops the balloon of Originalism." For example; Michael Greve asserts that "sovereign immunity" is a "doctrine" supported by originalist. No so. The idea of government immunity, disguised as sovereign immunity, is the exact opposite of the ORIGINAL intent of those who shed blood to ratify the Organic Law of the Land found in our Declaration of Independence. And the Law of the Constitution "made in pursuance thereof", just as Statutory Law must be "made in pursuance thereof". Originalist believe in the heirarchy of laws.

This begins with the Laws of Nature and Nature's God. Legal Practicioners tend to lose sight of this. I put it this way; Law Schools teach people how to PRACTICE law - they do NOT teach people 'The Law'. Knowledge of the Laws of Nature and Nature's Law requires a depth of knowledge combined with experience that very few, if any, have at the age of 25.

I've met far too many Attorneys blinded by an arrogance acquired with a license to practice law. An arrogance that renders them incompetent. They think thier license is proof they "know" "The Law" and so their minds are closed. This prevents them from the additional learning required to ever know the law. Of course that does not mean they cannot be effective practicioners. They can go on to become wealthy from their practice and even acquire seats on Courts where they can reverse the original intent of the Law of our Land to create "Doctrinal Law" that turns the Law on it's head. Sovereign Immunity / Government Immunity is a prime example.

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Ed Heimlich
on April 25, 2019 at 09:17:07 am

[…] Greve recently published a piece entitled Originalism as Ideology which criticizes originalism and argues that it may have “run […]

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How Old is Originalism?
on April 25, 2019 at 20:24:22 pm

The importance of originalism is in restraining the power, ego, and arrogance of judges from claiming they can decide the crucial questions of our democracy. If it is not in the Constitution in some ckear way, judges should 'decline to rule.' Let the people decide or state legislatures or presidents or Congress, or public opinion. Without originalism, there is no protection against judicial tyranny.

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Robert Kraynak
on April 26, 2019 at 07:48:06 am

[…] was grateful to appear with Michael Greve on the panel in which he delivered remarks on originalism that were posted in this space earlier this week.  I also appreciate his kind remarks on original […]

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Image of Originalism Protects the Timelessness of the Constitution
Originalism Protects the Timelessness of the Constitution
on April 27, 2019 at 08:50:15 am

[…] was grateful to appear with Michael Greve on the panel in which he delivered remarks on originalism that were posted in this space earlier this week.  I also appreciate his kind remarks on […]

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Image of Originalism Protects the Timelessness of the Constitution – Building Blocks for Liberty
Originalism Protects the Timelessness of the Constitution – Building Blocks for Liberty
on April 27, 2019 at 14:09:00 pm

We weren't formed a democracy

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Oft
on April 27, 2019 at 14:35:06 pm

I hope everyone in this conversation pays attention to what you've written. I learned about the Laws of God when I was a child in Sunday School. But, I didn't have any knowledge of the Laws of Nature until I was about fifty when I began studying the writings of the Founding Fathers.

Liberty Fund, Inc. is a tremendous resource for this because they publish a lot of primary source material. I love the premise of American law, that the good of the people is supreme law (how do you translate Cicero's "Salus"?) and that the purpose of government is to protect the Liberty of the people. And I love the Founders' definition of Liberty, best expressed by John Adams: "a power to do as we would be done by."

For original principles, I would recommend studying Roger Williams, a 17th-century maverick on many fronts. He clerked for Sir Edward Coke, was ordained in the Anglican Church, became a Puritan, then a Separatist, then a disenfranchised Protestant who founded Rhode Island. He brought the principle of Separation of Church and State to America because he believed Conscience is not the Province of civil government. It is based on the first table of the Ten Commandments which teach us our duty to God. He did not believe it wise to get God out of the public square. "Roger Williams and the Creation of the American Soul: Church, State, and the Birth of Liberty" by John Barry, Penguin. Very lively narrative, lots of quotes and a great bibliography.

My advice to anyone who wants to study the Founders' and the American Revolution--stay away from academic theories about history, or anything else for that matter. History is not a science, it's an exercise.

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Standing Fast
on April 27, 2019 at 15:55:41 pm

Yes - we ARE a Democracy with a Republican Form of Government.
A Democracy exists when the People are the Sovereign.
A Republican Form of Government exists when the People constitute (create) a tri partite government.
Three Branches or Divisions as a means to protect the sovereignty of the people, and the rights of the Individual, from government. Unfortunately the branches of our Fed Government, and the Divisions of State Governments, engage in collusion rather than do their duty to act as a check on the others. Fed and State also engage in collusion.
But I digress. Point is we ARE a Democracy and Originalism is important to keep the Judiciary, and all others in every branch and division - ALL our public servants - acting as our SERVANTS rather than as our slave masters.

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Ed Heimlich
on April 27, 2019 at 16:44:38 pm

Well said. I especially like your statement about all branches of our government acting as servants of the people rather than as our masters.

The Merriam-Webster's definition of Democracy is not the classical meaning but the one that has been in use since FDR, the Progressive definition. The dictionary's definition of Republican falls far short of the Founders' definition, so I suppose it, too, is a Progressive definition.

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Standing Fast
on June 03, 2019 at 00:21:59 am
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W.G.
on June 14, 2019 at 06:02:28 am

[…] to deny that there ever has been such a thing as legitimate constitutional textualism. It’s less a genuine criticism of the originalist enterprise than an existential scream against the very idea that the […]

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American Monologue
on September 23, 2019 at 06:01:33 am

[…] Tradcons are kidding themselves if they imagine they can get a better constitutional deal outside the current legal conservative movement with its commitment to a broadly fusionist originalism, argues John McGinnis [Liberty and Law] “Originalism as ideology” [Michael Greve] […]

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Constitutional law roundup | Overlawyered

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.