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Constitutional Originalism Responses
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- Answering Consent
Constitutional Originalism ResponsesIntroduction The United States Constitution forms the basis for all other American lawmaking and is therefore rightly known as the highest law in the land. The Constitution outlines the powers of the government and the limitations of that power. It also sets out the processes by which government exercises that power: the rules governing executive offices, legislative bodies and courts that rule the nation. The Constitution is remarkably short considering that its text is meant to serve these broad and important functions. The Constitution’s concision is not without problems. Many of its passages are vague and therefore require interpretation and application to specific instances in order to give the document meaning. Different schools of interpretation have arisen to reconcile the complex ambiguities of the constitution. Originalism is one such model of constitutional interpretation. This essay is devoted to exploring how a Lincoln-Douglas debater might answer an opponent who argues that originalist Constitutional interpretation ought to be valued. Originalists argue that constitutional interpretation “should remain faithful to the ‘original understanding’ or ‘original meaning’ of the governing principles or political philosophy of the framers.”33 To varying degrees, such theorists argue that the judiciary is best served by preserving the original meaning of the constitution as understood by its framers. This feature distinguishes originalism from competing interpretive philosophies that place more importance on the underlying values of the Constitution and their evolving meaning in a democratic society. Originalism’s prominent proponents include Supreme Court Justice Antonin Scalia and Yale Professor of Law (and failed Supreme Court nominee) Robert Bork. Some Lincoln-Douglas debaters might choose to link originalism to political philosophy by using theories of consent. Such debaters might argue that when the Constitution was written and ratified, citizens entered into a “social contract” with the United States as a sovereign state. They, therefore, agreed to abide by the laws that were enacted under the provisions of that charter. There were, however, limits to the powers. Some restrictions were procedural, like the provision that both houses of Congress must approve all legislation for it to become law. Others placed absolute boundaries on the kinds of powers exercised. For example, bills of attainder (legislative acts calling for the punishment of particular individuals for criminal activities) are prohibited absolutely by the U.S. Constitution. Constitutional originalists would argue that the democratic polity only consented to establish a government bound by those particular rules. Thus, any action outside of the bounds of the Constitution as originally agreed to by the people is illegitimate. The consent of the people, in fact, is one of the justifications for judicial review made by Chief Justice John Marshall when he first outlined the concept in Marbury v. Madison. He argued that the original limits of the people on the power of the government they established must be protected through judicial action: That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis, on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. … To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? … It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may not alter the constitution by an ordinary act. Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it. 34 Thus, the principle of judicial review is predicated upon a notion of consent. If consent is intended to be tangible--something beyond the dreams of political theorists—it must be embodied. For many, the Constitution is the enactment of the consent of the governed. But that consent can be guaranteed in perpetuity only if the Constitution is interpreted with its original meaning in mind. Answering ConsentThere are several difficulties with the attempt to use the Constitution to prove that governed actually consented to becoming political subjects. The most obvious is that no one who actually agreed to the Constitution are still alive today. It is hard to argue that the next generation should necessarily be bound by the actions of their ancestors. In addition, entire classes of individuals who now have legal equality, such as women and African Americans, had no avenue for legal participation in the formation of the Constitution. They were not able to vote at any stage of the ratification process. On what grounds could it be said that these people had consented to its adoption? Even if we were to limit consideration to those who were considered citizens at the time of the founding, to say “the people” consented to the Constitution would be a vast overstatement. It certainly was not all of the people, as many argued and voted against the adoption of the present Constitution. Nor did all people participate in the process on equal terms. Those who were present at the Constitutional Convention in Philadelphia had a greater part in the creation of the governing document than those who only voted for a representative to a state legislature or ratifying convention. If justified government is predicated upon an absolute interpretation of the consent of the governed, the Constitution certainly fails on those terms. 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