New Deal Originalism?
I may have respect for Andrew McCarthy, despite my many disagreements with his legal positions, but why are we waxing poetic about Judge Robert Bork? That he is the conservative benchmark for interpreting the Constitution is rather pathetic when you consider the list of grievances Randy Barnett, the author of Restoring the Lost Constitution: The Presumption of Liberty, and one of the leading constitutional law scholars on original meaning originalism, mentions here:
Is discovering and enforcing the original meaning of the Ninth Amendment activism? Or is it activism to characterize this inconvenient piece of text as an “ink blot” on the Constitution, as Robert Bork did in his infamous confirmation testimony?
Is discovering and enforcing the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment activist? Or is it activist to characterize this inconvenient piece of text as an “ink blot” on the Constitution, as Robert Bork did in the Tempting of America?
Is insisting on the original meaning of the Commerce Clause and Necessary and Proper Clause activism? Or is it activist to ignore the limitations imposed on Congress by these provisions, as Robert Bork all but did in The Tempting of America?
Judge Bork’s views are not unlike the views of judicial conservatives and, for that matter, many judicial liberals that seek to interpret the Constitution as a matter of reinforcing democratic principles rather than protecting individual liberty. Neither group seeks to enforce the meaning of the Constitution. To do so would require enforcing not only those limitations on the federal government but also to recognize that the plain meaning of the Ninth and Fourteenth Amendments recognize rights that are not specifically enumerated in the Constitution.* With respect to the Fourteenth Amendment, that would mean abandoning any pretense of an unlimited state police power where unenumerated rights are concerned. It is certainly not consistent with the Tenth Amendment nor is it consistent with the proper role of the state police power.
Judicial conservatives like Judge Bork are more comfortable with the jurisprudence that arose out of the latter part of the New Deal, where liberal courts simply deferred to democratic majorities under a “presumption of constitutionality”, with a few notable exceptions that has come to be known as Footnote Four jurisprudence. More from Randy Barnett:
With the Great Depression came the New Deal, which proposed similar measures at the national level. The story of how the Supreme Court came to reverse itself and eventually uphold this legislation as constitutional is fascinating, but too complicated to try to summarize here. (The best book on this is Rethinking the New Deal Court, by University of Virginia legal historian Barry Cushman.) Suffice it to say that ever since U.S. v. Carolene Products (1938), legislation was supposed to be presumed constitutional unless one of the three exceptions in its famous “Footnote Four” was satisfied. Heightened scrutiny would be given to a statute that (a) “appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments,” (b) interfered with the political process, or (c) messed with a discrete and insular minority. This allowed the court to uphold economic regulation, while preserving judicial review of enumerated rights such as freedom of speech and of the press. (The fact that the right to bear arms — explicitly mentioned in the Second Amendment — has not been judicially protected, shows the ideological nature of this maneuver.) Ironically, no one has been more stalwart in allegiance to the Roosevelt-New Deal judicial philosophy of Footnote Four than today’s judicial conservatives, such as Robert Bork.
Constitutional majoritarianism, as espoused from both the Left by people like Justice Oliver Wendell Holmes, Jr. and Justice Stephen Breyer and on the right by the likes of Andrew McCarthy, Judge Bork and Justice Scalia is not about maintaining or enforcing the meaning of the Constitution. It is about reinforcing democracy and, if necessary, throwing the Constitution under the bus when difficult questions arise. Original meaning originalists or textualists that typically subscribe to the natural rights tradition (mostly libertarians), categorically reject this view.
Therefore, those attempting to reconcile the way libertarians believe the Constitution ought to be interpreted to the way modern liberals believe the Constitution ought to be interpreted is an exercise in futility. Constitutional law is a little more rigorous than the recitation of talking points found on any number of articles from WorldNetDaily and Townhall, and, if you really want to cite a man who has not only has had his constitutional positions widely discredited but has also made a mockery out of the document he has attempted to defend, know that you are bringing a knife to a gunfight.