by Joshua Charles
February 17, 2016
“I write separately to call attention to this Court’s threat to American democracy.”
So wrote the late Justice Antonin Scalia in his Obergefell dissent.
Scalia, or “Nino,” as his colleagues affectionately knew him, was the foremost advocate of what has become known as original textualism. He believed that the Constitution, though not always clear, and certainly subject to a degree of interpretation, was a legal document made up of words, words that had a relatively fixed meaning to those who adopted it (including the subsequent amendments).
But why should this be so important? James Madison provided the explanation:
In Europe, charters of liberty have been granted by power. America has set the example … of charters of power granted by liberty. This revolution in the practice of the world, may, with an honest praise, be pronounced the most triumphant epoch of its history, and the most consoling presage of its happiness. We look back, already, with astonishment, at the daring outrages committed by despotism, on the reason and the rights of man; we look forward with joy, to the period, when it shall be despoiled of all its usurpations, and bound forever in the chains, with which it had loaded its miserable victims.
Ours is, to use Madison’s verbiage, a chartered government. It has only what we, the people, have given it through its charter, the Constitution, and no more. This was the political achievement of the ages, an accomplishment never before seen in history: a government explicitly limited by a written document.
This is why its words mean something, and cannot simply be altered to mean whatever we want them to mean. For Madison, Constitutional interpretation must be done by “resorting to the sense in which the Constitution was accepted and ratified by the nation.” Elsewhere he observed that “The intention of the parties to [the Constitution] ought to be kept in view … as far as the language of the instrument will permit, this intention ought to be tranced in the contemporaneous expositions.”
However, the Founders were well aware that what they had produced was not perfect, and would inevitably require updates as American society evolved. Washington himself had remarked, “I do not conceive that we are more inspired — have more wisdom — or possess more virtue than those who will come after us,” and this is precisely why they included Article V of the Constitution, the Amendment Process. The founding generation itself used this process ten times when it added the Bill of Rights in 1791, a process that requires the consent of essentially the whole nation, not merely of a particular faction.
This is why Washington exhorted his countrymen in his Farewell Address to use the Amendment Process alone to change the Constitution:
If in the opinion of the people, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates.
However, there is now the modern ideology of the “living Constitution,” the idea that essentially the Constitution means whatever we need and want it to mean. Its words can be purposely interpreted according to our own desires, and particularly the desires of the nine lawyers on the Supreme Court, not through what Washington called “an explicit and authentic act of the whole People.”
But, when one reads the words of the Founders, one realizes this heretical constitutional doctrine has been a danger all along, one which they warned against from the very beginning.
In his farewell, Washington warned his fellows Americans to always remember “that facility in changes [to the Constitution] upon the credit of mere hypotheses and opinion exposes to perpetual change, from the endless variety of hypotheses and opinion.” If the Constitution could be changed merely by imposing new meanings on the words, then “not one, more than another, can be binding, if the spirit and letter of the expression is disregarded.”
Washington admitted that, on occasion, perhaps such changes to the Constitution “may be the instrument of good.” But, he warned, “it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield.”
President Adams, in his Inaugural address, noted the same principle, asserting that he had “[never] entertained a thought of promoting any alternation in but such as the people themselves, in the course of their experience, should see and feel to be necessary or expedient, and by their representatives in Congress and the State legislatures,according to the Constitution itself, adopt and ordain.”
On this matter, Madison asked publicly “Who are the friends of the Union?” His answer could not have been clearer:
Not those who study, by arbitrary interpretations and insidious precedents, to pervert the limited government of the Union into a government of unlimited discretion, contrary to the will and subversive of the authority of the people.
In other words, you were no friend of the United States if you believed in going around the Amendment Process — if you believed in the “living Constitution.”
Toward the end of his life, Thomas Jefferson saw with ominous clairvoyance the danger of the ideology of the “living Constitution” in the courts of his own day, fearing those who sought “the consolidation of the government; the giving to the federal member of the government, by unlimited constructions [interpretations] of the Constitution, a control over all the functions of the States, and the concentration of all power ultimately at Washington.” Most eerily, Jefferson identified the two clauses of the Constitution that, among others, Justice Scalia himself identified as the great panaceas of the “living Constitution” ideologues — the commerce and general welfare clauses:
Under the power to regulate commerce, they [the federal government] assume indefinitely that also over agriculture and manufactures, and call it regulation … and aided by a little sophistry on the words “general welfare,” a right to do, not only the acts to effect that, which are specifically enumerated and permitted, but whatsoever they shall think, or pretend will be for the general welfare.
As for the judges who engaged in this nonsense, Jefferson had but one answer: “[They] should be withdrawn from their bench [those whose] erroneous biases are leading us to dissolution. It may indeed injure them in fame or in fortune, but it saves the republic, which is the first and supreme law.”
But what do we find the Founders intended for the judiciary in what Madison called “the most authentic exposition of the text of the federal Constitution, as understood by the body which prepared and the authority which accepted it [the people],” the Federalist Papers? In Federalist No. 78, Alexander Hamilton made it quite clear:
[T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them … [The Supreme Court has] no influence over either the sword or the purse … It may truly be said to have neither force nor will, but merely judgment.
The Supreme Court has long since abandoned its role merely to dispense with judgment, and has assumed the unchartered, unconstitutional scepters of force andwill through the specious and dangerous ideology of the “living Constitution,” an ideology our Founders consistently warned us against. By its undoing of what Madison called the “chains” of the Constitution, the committee of nine lawyers has indeed became a threat to American democracy by transforming the Constitution, like the tyrannies of old, into a charter of liberty granted by the power of judges, rather than a charter of power granted by the liberty of the people.
The Founders were right. And so was Justice Scalia.
— Joshua Charles is the co-author with Glenn Beck of the #1 New York Times best-selling book The Original Argument. His book Liberty’s Secrets: The Lost Wisdom of America’s Founders (foreword by Dennis Prager) was an Amazon bestseller. This article originally appeared at The Stream.