Originalism and Its Discontents

You might think that such disputes would have been laid to rest by a bloody Civil War and the Reconstruction amendments, which outlawed slavery and granted all men the right to vote, regardless of race. Not to mention that the Constitution continued to change in the century after: Senators were to be directly elected; women were granted the right to vote.

But for the last 50 years, the Constitution has appeared frozen in amber. (The last major amendment, in 1971, lowered the voting age to 18.) In reaction to landmark decisions prohibiting segregation and bans on interracial marriage, conservative legal scholars began to champion judicial interpretations that rested on the framers’ intentions, 200 years before.

Originalists, as these scholars call themselves, say they are simply reacting to decades of “overreach” by “activist” judges. Liberal critics counter that interpreting the law according to what the founders (supposedly) wanted amounts to an end run around protecting and promoting a multiracial democracy. The attorney and columnist Madiba K. Dennie argues that originalists’ canny use of apolitical language ensnares liberals into treating originalism as coherent jurisprudence, even when it functions more like an “ideology.” Far from encouraging “judicial restraint,” she writes in “The Originalism Trap,” originalism is much more effective in “restraining judges from doing good things.”

It may be a measure of the current crisis that even the conservative scholar Yuval Levin doesn’t think originalism can remedy our constitutional woes. Originalism is by definition preoccupied with what judges do, when the more urgent problem lies with a legislature that is, as he puts it in “American Covenant,” “underactive.” Members of Congress behave “like performers or mere seekers of celebrity,” neglecting to do the hard work of wielding the legislative power entrusted in them by the Constitution.

To anyone who thinks that the Constitution has been tearing us apart, Levin insists that it can bring us together. He argues that precisely because the Constitution was a “product of grudging and gradual compromise,” it is especially valuable in our fractious times. The requirement of supermajorities, which entails “frustrating narrow majorities,” is, he says, a good thing. Members of Congress are supposed to build coalitions, which “tends to make partisans more tolerant, and more tolerable.”

It does? A lot of people looking at Congress today would be hard pressed to find a glimmer of the tolerance Levin so genially prescribes. Even he has to admit that Congress “looks dysfunctional from every angle.” But Levin’s serene insistence that political frustration is healthy instead of corrosive may have something to do with the fact that the Constitution’s “patchwork of compromises” happens to align with his own brand of cautious conservatism. He says that presidential candidates should vie for voters in “the most competitive states, which tend to fall near the ideological middle,” because it “is good for both national unity and the competitiveness of our politics.” He singles out for praise “the peculiar institution of the Electoral College.”

The Consequences of Constitution Worship

The Electoral College, of course, is one of the bargains the framers made in order to reassure the slave states that they could keep their own “peculiar institution.” Abolishing the Electoral College has become a popular refrain among liberals — something that the legal scholar Aziz Rana counts as one of the procedural specifics that consume discussions about constitutional reform. In his bold new book, “The Constitutional Bind,” Rana argues against this tendency to “take our problematic system as a given, and then struggle to patch especially egregious leaks.” Instead of focusing on patchwork measures, he encourages us to think more expansively.

The bind he describes is familiar, if untenable: Americans who are justifiably disenchanted with the Constitution still cling to it in times of duress. “These defenses implicitly suggest that Americans can only effectively protect their bedrock liberties from demagogues by redoubling their commitment to the text.”

“Constitution worship” is so habitual that it’s tempting to assume the veneration was baked into our politics from the very beginning. But Rana situates it historically, showing how it flourished in the 20th century, alongside the country’s global ambitions. Even as the United States pursued imperial projects in places like the Philippines and tolerated racial terror in the Jim Crow South, the Constitution was offered as proof that the country was profoundly committed to liberty and equality — that “its interests are coterminous with the world’s interests.”

Originalism has gathered strength by tapping into this reverence — deploying the authority of the framers in order to pass off originalist interpretation as the epitome of restraint and objectivity. Rana notes that originalism has allowed conservatives to undermine progressive policies while using the soothing language of constitutionalism.

According to this line of argument, the damages of Constitution worship extend to the structure of the political system itself. National politics gets increasingly funneled through the judiciary, with control of the courts — especially the Supreme Court — becoming a way to consolidate power regardless of what the majority of people want. This disempowerment of majorities, combined with political gridlock and institutional paralysis outside the judiciary, fuels popular disaffection. The document that’s supposed to be a bulwark against authoritarianism can end up fostering the widespread cynicism that helps authoritarianism grow.

Rana says that the urge to seek salvation in the Constitution has stunted not only our political behavior but also our understanding of what’s possible. Americans tend to overlook the possibilities of mass democratic politics precisely for this reason — we succumb to the conventional wisdom of Constitution worship, thinking that political progress is a matter of adhering ever more perfectly to the “essence” of the document, when the building of majorities is invariably a more complicated process.

But such complications are often why we have held fast to the Constitution; for a long time, it offered a shared language when we couldn’t agree on much else. The historian Linda Colley, who has written critically about the connection between constitutions across the world and imperial expansion, nevertheless concludes that such “frail, paper creations of fallible human beings” can inscribe expectations that governments are at least supposed to live up to — providing something of value, even when violated.

Jennifer Szalai is the nonfiction book critic for The Times. More about Jennifer Szalai

So with the revelation of MASSIVE & WIDESPREAD FRAUD & DECEPTION in working closely with Big Tech Companies, the DNC, & the Democrat Party, do you throw the Presidential Election Results of 2020 OUT and declare the RIGHTFUL WINNER, or do you have a NEW ELECTION? A Massive Fraud of this type and magnitude allows for the termination of all rules, regulations, and articles, even those found in the Constitution. Our great “Founders” did not want, and would not condone, False & Fraudulent Elections!