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07/04/2018

Scott Gerber on Originalism and the Declaration
Michael Ramsey

At The Daily Caller, Scott Gerber: Originalism and the Fourth of July.  From the introduction:

President Donald Trump has indicated that he is working hard to appoint “originalist” judges to the federal courts. He is correct to do so, especially because the alternative is for judges to act like legislators by reading their personal views into the Constitution and impose them on the rest of us. But as the United States celebrates its 242nd anniversary on July 4th, it is important to appreciate that there are two different types of “originalism” and that only one of the two truly honors who we are as a nation.

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The[ ] dominant iterations of originalism can be fairly characterized as “conservative originalism”: an approach that dictates that judges may legitimately recognize only those rights specifically mentioned in the Constitution, or ascertainably implicit in its structure or history. In all other cases, conservative originalists argue, the majority is entitled to govern—to make moral choices—through the political process. “Liberal originalism,” by contrast, maintains that the Constitution should be interpreted in light of the political philosophy of the Declaration of Independence. Liberal originalism rejects both conservative originalism and the notion of a living constitution on the ground that they are post-hoc rationalizations for preconceived political results.

Liberal originalism insists that conservative originalists mischaracterize the Constitution as establishing a majority-rule democracy, a mischaracterization that is also made by many constitutional theorists of progressive political views. Because of the Framers’ desire to avoid what Elbridge Gerry called the “excess of democracy,” they created a republican form of government, not a majority-rule democracy. And in that republican form of government, the judiciary is to play a central role: chief guardian of the unalienable rights of the American people, especially of individuals and minorities. Briefly put, liberal originalism employs a conservative methodology, but arrives at liberal results, as “liberal” is understood in the classic sense of seventeenth- and eighteenth- century Lockean political philosophy. “To secure these rights,” Thomas Jefferson proclaims in the Declaration of Independence, is the reason that “governments are instituted among men.” To secure unalienable rights is, therefore, why the Constitution was enacted, and to secure unalienable rights is how the Constitution should be interpreted. That is the “original intent” of the Founders.