Ethics & Public Policy Center

What It Says

Published in National Review on March 6, 2006



The Heritage Guide to the Constitution, edited by Edwin Meese III, Matthew Spalding, and David Forte (Regnery, 475 pp., $35)

The political combat over President Bush’s nominations of John Roberts and Samuel Alito to the Supreme Court reflects an underlying battle over the meaning of the Constitution and the power of the judiciary. The major combatants in this jurisprudential battle are originalists, on one hand, and advocates of the “living Constitution,” on the other.

In much the same way that Molière’s character was delighted to discover that he had been speaking in prose all his life without knowing it, most Americans would be surprised to discover that they are originalists. Even some ardent critics of “originalism” haven’t the slightest understanding of what they are criticizing: In a recent debate on the Alito nomination, a lefty law professor arguing against me ridiculously charged that originalists seek a return to the original 1787 Constitution, without any of the amendments, “not even the Bill of Rights!” An anti-Alito editorial in the Boston Globe hinged on a similar mistake.

The term “originalism” merely identifies the traditional, common-sense principle that the meaning of the various provisions of the Constitution — yes, including all those amendments — is to be determined in accordance with the sense they bore at the time they were adopted. This principle, which inheres in the very nature of the Constitution as law, is readily grasped outside the realm of contentious political issues. Virtually everyone will intuitively understand, for example, that the only sensible way to determine what it means to be a “natural born Citizen” — a criterion of eligibility for the presidency — is to look to the sense of that phrase at the time it was adopted.

We originalists understand the Constitution to have created a scheme of representative government in which the vast bulk of decisions are, for better or worse, made by the people through their elected representatives. Judges, under an originalist perspective, can legitimately intervene to override a legislative enactment only when the enactment violates the original meaning of a constitutional provision.

Originalist jurisprudence does not provide an easy answer to every constitutional question, for originalists will differ among themselves on the scope of the rules and principles set forth in the Constitution as well as on subsidiary methodological questions. But originalism provides an objective — and, we originalists maintain, the only legitimate — measure of what the Constitution actually means.

Proponents of the “living Constitution,” by contrast, maintain, at bottom, that the Constitution means whatever five justices want it to mean. This plasticity is necessary, they claim, in order for our society to adapt to changing circumstances. But this claim ignores the broader play that originalism gives to the democratic processes to adapt policies to new conditions. And, by entrenching current policy preferences in the Constitution, the “living Constitution” approach deprives future generations of the very adaptability that it vaunts.

The “living Constitution” is a deceptive euphemism, not a coherent theory. Though intellectually bankrupt, its approach is politically powerful because it promises — and has delivered — results. For decades now, the Left has won through the courts undeserved victories — on matters like abortion, radical secularism, and obscenity — that it could not possibly have won through the political processes. The more unpopular its agenda (same-sex marriage, anyone?), the more dependent it is on judicial usurpation.

The “living Constitution” was regnant in 1985 when Ed Meese, President Reagan’s attorney general, launched an intellectual campaign for the revival of the orthodoxy of originalism. More than two decades later, the battle for originalism continues — and so do Meese’s tremendous contributions to that battle. President Bush’s appointments of Roberts and Alito, both products of the Reagan Justice Department, promise to bolster the cause of originalism on the Court. And, under the auspices of the Heritage Foundation, Meese, together with Matthew Spalding and David Forte, has compiled a comprehensive explanation of the original meaning of every line of the Constitution.

The Heritage Guide to the Constitution is an invaluable reference work that anyone interested in learning more about the Constitution should have on his bookshelf. It consists primarily of a couple hundred or so brief essays — the vast majority no more than a page or two in length — on every clause or subclause in the Constitution. Each essay attempts to explain the original meaning of the provision that it addresses as well as to set forth the current state of the law on that provision. Each essay also sets forth, where appropriate, cross-references to other relevant provisions in the Constitution, citations to legal materials for further exploration, and a list of significant cases.

More than 100 experts — mostly law professors but also academics from a variety of other fields as well as a smattering of judges and lawyers — have contributed the essays. The essays are clearly written, concise, and highly informative. They are scholarly and dispassionate, not polemical. The Heritage Guide also contains three brief and elegant introductory essays by the editors — one by Meese on basic constitutional principles, one by Spalding on the history of the Constitutional Convention, and one by Forte on originalism.

Anyone doing serious research on a question of constitutional law will find the Heritage Guide an excellent starting point. But the book is also a pleasure to browse, as the casual reader can bounce from topics like the Recess Appointments Clause to Treason to the Rights Retained by the People. The fact that less than one-fourth of the book relates to constitutional amendments may also serve to remind the modern reader, who too often hears about little other than the Bill of Rights and some generalized, nontextual right of privacy, that the real genius of the Constitution, the greatest guarantee of our liberties, lies in its scheme of separated powers.

My one modest complaint about the Heritage Guide is that more thought could have been devoted to making it easier to navigate. The Constitution at the front serves as a sort of table of contents, but the sidebar headings don’t match the essay headings and don’t include any references to page numbers. As a result, finding an essay on a particular provision is more cumbersome than it needs to be. Even this defect, though, has the upside that the search can turn into an enjoyable frolic and detour, as the reader runs across obscure constitutional provisions that pique his interest.

Overall, the Heritage Guide is a grand achievement. Let’s hope that its originalist explanations have increasing influence as changes in the composition of the Supreme Court offer the prospect of greater conformity between Supreme Court case law and the actual Constitution.

Mr. Whelan, a former law clerk to Justice Antonin Scalia, is president of the Ethics and Public Policy Center and a regular contributor to National Review Online’s Bench Memos blog on judicial nominations.

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