The debate is really over how judges should construe our written Constitution of 1787. "Construing" means saying what it means. There really are only two ways.
The first way: It can be construed consistently with the intent of the people who voted, through their representatives, to make it "the supreme law of the land." Those who would construe it this way are called "originalists" because they would construe the Constitution consistently with the intent of those who originally approved, ratified and amended it between 1787 and 1791.
The second way: The alternative method of construction is to construe the Constitution using any other intent. Perhaps a "more enlightened intent." Or a "more modern intent." Folks who opt for this alternative method of construction insist that the "Constitution is a living document for all ages."
But originalists would agree that the Constitution is a living document for all ages. For example, originalists would say the First Amendment guarantees freedom of speech on the internet to the same extent it has protected speech on a street corner, or in a newspaper since 1791. In this, both progressives and originalists would agree.
The First Amendment also guarantees the right of the people to peacefully assemble, and to petition the government for a redress of grievances. Originalists would acknowledge the people's right to peacefully assemble and protest. But they would deny that that right includes the right to riot, loot or burn buildings.
The rights of Americans are our liberties. The word "liberty" appears in two amendments to our Constitution.
The Fifth Amendment (1791) provides that no person shall be "deprived of life, liberty or property, without due process." The Fourteenth Amendment (1868) provides "nor shall any State deprive any person of life, liberty or property, without due process of law."
From the Magna Carta in 1215 until after our Civil War "due process" has had a clear fixed meaning. For Englishmen and Americans, it meant that no man could be executed, imprisoned or fined unless he was first tried and convicted consistently with the laws of the land. Due process referred to procedures — the laws of the land. That form of due process is therefore known as procedural due process.
But in the latter 19th Century, some judges opted to define liberty in a more expansive and "enlightened" way.
That "more enlightened" construction first redounded to the benefit of sweatshop employers. Laws that sought to limit the working day to ten hours, and the work week to sixty hours, and laws to protect child laborers, were struck down as infringing on the "economic liberty" of the employer and the worker to set their own contract terms. The result was that the Constitution was "amended" by five or more men in black robes to bar the states from making laws to regulate working conditions.
Because trade unions also were viewed as impinging on the liberty of employers and employees to freely contract, they were for a time regarded as criminal conspiracies. This expanded definition of the word "liberty" found in the due process clauses had nothing to due with procedural rules governing court cases. Because the Supreme Court recognized a hitherto undiscovered aspect of liberty, recognized its independent existence, and enshrined it as a constitutional right, this form of due process came to be known as "substantive due process."
"Substantive" refers to something that has a firm basis in reality and which has an independent existence.
In the 1930s, the Supreme Court overruled its substantive due process holdings in the employer/employee context. But in Roe v Wade (1973), and in Bourke v. Beshear (2018) and their related cases, the Court revivified its discredited substantive due process doctrine and held that liberty encompasses the right to abortion and same sex marriage.
In Bourke, a bare five judge majority amended the U.S. Constitution. The majority in effect said that this is the way the men who wrote the Fifth and Fourteenth Amendments, and the people who ratified them, meant liberty to be defined.
The originalists argue that that the men wrote the Fifth and Fourteenth Amendments, and the people who ratified them never for a minute thought that "liberty" included the right of abortion or same sex marriage, and that if they had been told that that was how it would be construed, they would have refused to approve either amendment and probably would have refused to ratify the Constitution.
Originalists further point out that Article V of the Constitution sets out specific procedures for amending the Constitution. This amendment power resides in the people acting through their elected representatives, not in the judges.
Originalists believe their duty is limited to construing the Constitution as the founding fathers intended. Progressive judges believe they have power to fix any deficiencies they perceive to exist in the Constitution.
Originalists fear that if progressives can expand the definition of liberty today, Marxists and Fascists can contract it tomorrow. Originalists are content with liberty meaning today, what it meant in 1791.
Originally published in the Moline Dispatch and Rock island Argus on October 9, 2020
Copyright 2020
John Donald O'Shea
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