In the academic world, originalism has become the theory of constitutional interpretation to beat.
Editor’s Note: Two weeks ago Sandy Levinson argued in a post entitled “A Jeffersonian Proposal for the Constitution” that we must revisit in a very Jeffersonian fashion of experiment and innovation the supposed failures of our Constitution and be willing to build anew where necessary. This post by Lino Graglia evaluates Levinson’s proposal.
Sandy Levinson could not be more mistaken in stating that “everyone will agree that the task at hand is to figure out how the existing Constitution should be interpreted.” As a hard-core realist, he is fully aware, and no doubt will readily admit, that the Constitution has almost nothing to do with constitutional law. Does anyone really think that there is a constitutional right to have an abortion because of how Justice Blackmun interpreted “due process”? Texas can’t prohibit sodomy and the states can’t have term limits on congressmen not because of the Constitution, but because Justice Kennedy, the American ayatollah, chose to vote with the liberals in those two cases. Congress can’t limit campaign contributions, Seattle can’t consider race in school assignments, and we have an individual right to own guns, because Kennedy chose to vote with the conservatives in those two cases. The justices split 4 to 4 so consistently, regardless of the issue, because of their conflicting ideologies, not different abilities to read the Constitution. The obvious truth is that no controversial ruling of unconstitutionality depends on constitutional interpretation. (Incidentally, Article One does not say “all powers,” it says “all legislative powers”)
On the other hand, I could not agree with Sandy (and Jefferson) more that the Constitution should not be treated as sacred and that it should be made readily amendable. Nearly all constitutional restrictions are undemocratic and almost always bad ideas. There is no good reason why any policy judgment made by human beings in the past should prevail over a contrary judgment made democratically in the present. The clearest and almost only important limit on the states in the original Constitution was the Contracts Clause, prohibiting debtor-relief legislation. It proved to be a prescription for disaster during the depression, and so the Court (facing a unique opportunity for interpretation!) sensibly simply read it out of the Constitution.. Do we need, for example, the “birther” controversy?—who cares where Obama was born? Federalism, for another example, means only that we have to lie and cheat (hire lawyers) to have a normal (all –powerful) national government. I’m all for the oxymoronic notion of a “living Constitution,” as long as it is made to live by relaxing the grip of the dead hand, not, a la Brennan, adding new restrictions.
Sandy’s co-conspirator, Jack Balkin, solved the problem of reconciling originalism with free-hand judicial policymaking, with the “brilliant” though preposterous assertion that the Framers intended free-hand judicial policymaking.