Phony Originalism - Tenth Amendment Center

[Twana Blevins]

by Kevin R.C. Gutzman, Taki’s Magazine

Since the days of Ronald Reagan and Edmund Meese, the Republican Party’s position has been that judges should be bound by the people’s understanding of a particular constitutional provision at the time they ratified it. This notion goes under the name “originalism.”

Recent events, including the Republican response to President Obama’s nomination of Judge Sonia Sotomayor to the Supreme Court, reveal that the party is a highly unreliable vehicle for this principle.


So, for example, the Republican Party decried the Supreme Court’s decision in Kelo v. City of New London (2005) that the Fifth Amendment did not bar New London, Connecticut, from seizing private property for a public purpose. According to the stock criticism, the Fifth Amendment left open the possibility of government seizure of private property only for public use, not for public purpose.

What this criticism omits, however, is that the Fifth Amendment, like the rest of the Bill of Rights, is a limitation solely on the Federal Government. Since the government of New London is not the Federal Government, an originalist reading would hold the Fifth Amendment inapplicable.

Just try explaining this to a Republican audience. Not only do Republicans argue for application of the Fifth Amendment’s Takings Clause against state governments. They also vociferously insist that the Second Amendment is enforceable against the states.

In fact, Republican lawyers have recently found success in persuading some federal judges for the first time to treat the Second Amendment as enforceable against the states. It once was only the left-most Supreme Court advocates (for example, those who argued against prayer in public schools) who argued for the Incorporation Doctrine. Now, however, this is a “conservative” position and “conservative” public-interest lawyers take this position before the Supreme Court.

The Bill of Rights as an obstacle to federal infringement on state authority was only one element of the underlying principle of the U.S. Constitution. This is “federalism,” the notion that the states (meaning the sovereign people of each state) had delegated only particular powers to the Federal Government. In the Reagan era, with Edmund Meese as attorney general and Charles Cooper as assistant attorney general, this principle received an emphasis it had not since 1937.

Now, however, the Republicans take an energetic position on the wrong side of the question. So, for example, Sen. John Thune of South Dakota recently offered his Concealed Carry Amendment to a defense authorization bill.

Under this amendment, if someone had a right to carry a concealed weapon in his home state, he would be given federal authorization to carry it in states he might visit. What constitutional provision empowers Congress to force this policy upon the states? Don’t be silly.

Of course, the question of gun rights is not the only currently live one that excites core Republican voters. Therefore, it also is not the only one that prompts Republican office-holders to ignore the principle of federalism.

In 2006, the editors of National Review endorsed the notion of an amendment to the Constitution defining marriage. Why should the Federal Government impose a single definition on all the states, who have always had complete control over such questions? Because federal judges cannot be restrained, those editors reasoned, from legislating their own definition. In other words, if you don’t trust one fox, put the whole fox family in charge of the chicken coop.

Alas, to argue for augmenting federal authority seems to be what the editors of National Review reflexively do. Who cares about the Tenth Amendment’s reservation of all undelegated powers to the states?

No wonder Democrats and pro-choicers generally say that the Republicans are hypocritical in invoking the principle of federalism against Roe v. Wade. What is a “principle,” they rightly wonder, that is only invoked when it cuts in the desired direction?

That is a good point.

It gains additional force from the fact that Republicans do not even invoke it consistently across all abortion disputes. In Gonzales v. Carhart (2007), the Supreme Court upheld a congressional ban on partial-birth abortion. In a concurring opinion in that case, Justices Antonin Scalia and Clarence Thomas noted that the Commerce Clause, as properly understood, did not give Congress power to enact such a ban.

However, they said, so long as the Court’s unfounded Commerce Clause precedents stood, Scalia and Thomas would join in extending them to this new area.

Principled originalism in action!

Republicans also generally join in opposing pro-black discrimination in government hiring, firing, promotions, contracting, and other such decisions (and cheered the recent Ricci decision). They do this on the ground that the Equal Protection Clause of the Fourteenth Amendment requires color-blindness on the part of government.


This is of course a morally appealing argument. But the issue is not whether the Republican policy positions are appealing; that is a legislative question. The question is whether the Republicans’ constitutional position has merit.

Here, as in the other areas described above, it does not. The Equal Protection Clause was not intended as a wide-ranging mandate for government equality, but to have much narrower application. The Supreme Court long recognized this fact. Conservatives do their reputation for intellectual honesty no favors by arguing for extension of unfounded precedents.

In short, then, Republicans generally do not stand for principled adherence to originalism, which once was called “the Constitution.” Across a range of questions, they mirror their Democratic opponents in advocating judicial legislation of their preferred legislative outcomes.

Kevin R. C. Gutzman, J.D., Ph.D., Associate Professor of History at Western Connecticut State University, is a New York Times best-selling author. He’s written Virginia’s American Revolution: From Dominion to Republic, 1776–1840, The Politically Incorrect Guide to the Constitution, and as co-author with Thomas E. Woods, Jr., Who Killed the Constitution? The Fate of American Liberty from World War I to George W. Bush.

Copyright 2009, Kevin R.C. Gutzman. Published with permission of Taki’s Magazine

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[Robert Troxell]

Republicans have become enthusiasts of big government every bit as much as democrats. Nationalism has become so entrenched in the American psyche that the concept of state rights and sovereignty are not considered to be material, so it is no surprise that there is blurring when considering the enumerated powers under the Constitution and the application of its restrictions to the States. You would think that a moment's reflection would bring the obvious limitations of the argument to light, but politicians are eager to embrace positions to advance their argument despite the damage it might cause in the future. How nonsensical to apply federal restrictions to the states while simultaneously ignoring unconstitutional laws that the federal government imposes on the states.

[Wiccanwolf]

Not all Republicans are for "Big Government", most of us would love to have the Federal Government small, and not an over bloated slug. I am all for going back to demanding the Senate, stick to its clearly defined mission statemant as outlined in the CONSTITUTION! Or be dissolved and reformed with strict guidelines and stricter penalities for beraking them. One such penalty is public flogging after tarring and feathering.

Now being Nationalistic, that is a good thing, but when it is warped to Socialism and Communism, then something has to give and that give is the desturction of Communism and Socialism!

[Doug Hinkle]

Mr Gutzman is obviously a very learned Constitutional Scholar. This leaves me, a not so learned person, to wonder; what is to stop any state from enacting a complete firearms ban? Maybe a ban on free speech when it involves certain subjects, or a law allowing random home searches, just because they want to. I don't know what other states Constitutions say. I know PA's right to bear arms is specific. But I'm not sure about all aspects. So maybe we all need to get our own houses(States) in order. Then we won't need the Federal Gov't to be as nearly involved. This is most likely what the Founders wanted. Yes, more of a Confederacy. I think we should all start looking for local and state issues to battle. The Federal thing will be taken care of as a natural byproduct of this fight. States Rights rule!

[Peggy Cravens]

Well, Doug, I had a hard time just understanding what he wrote and will have to study it to be able to understand what he wrote but I like what you have said here and I thank you for your comments.

Peggy, Austin, Texas

[Skip Cashwell]

Being a "plain language" advocate, except for the First Amendment, which begins, "Congress shall make no law...." the remaining nine amendments specifically extend to the People and their respective States preservation and protection of the enumerated rights. There is no need to create or pursue the concept of "Incorporation Doctrine" with respect to the initial nine amendments...such judicial action is specious at best and egregious expansion of the role of the Federal courts.

 

No where in the Constitution, including all the amendments, is "incorporation" even hinted at much less specified. In fact the word does not appear at all. Therefore, the "potentially most dangerous branch" of our Republican form of government, the Judicial Branch, by manufacturing the "Incorporation Doctrine" has indeed reached the levels warned about in the writings of our founding scholars.

 

I am also of the opinion that it no longer is a case of Republican or Democrat party, as respects the "national" government - it is now an elite, "insiders" club that is in power. We must demand a return to principles and eliminate government by "programs" and "policies."

 

Having noted my opinion for your consideration, I should like to provoke this group with the thought that there is noting to prevent a State from enacting a total ban on "arms" ownership and possession...except as noted above, all of the states ratifying the Second Amendment accepted the "plain language" therein as applying to the State body itself. Therefore, it is un-Constitutional for any State (or government body within) to infringe upon the individual citizen's "right to bear arms."