Dr. David Forte, Senior Editor of The Heritage Guide to the Constitution and professor at the Cleveland State University School of Law, spoke to Texas Tech’s chapter of The Federalist Society today about the merits of originalism. His remarks tracked with the arguments made in his essay “The Originalist Perspective” that introduces The Heritage Guide.

Dr. Forte began with the story of Homer Plessy, the biracial man who sat in the white car of a train in violation of Louisiana’s Separate Car law in an attempt to create a test case to lead to the law’s repeal under the 14th Amendment. As we all know, he failed. When it got to the Supreme Court a 7 justice majority decided that so-called “separate” protection under the law did not violate equal protection under the law — the essence of the 14th Amendment argument.

Originalism, Dr. Forte said, came as a backlash to this kind of creative jurisprudence. Relatively early in American history, the courts began substituting elite conventional wisdom for the intent of the Framers.

All justices at all times have attempted to impose contemporary social values on us through the screen of the Constitution. They were wrong to do so.

As early as 1824, James Madison detected a change among judges. By the 1850s the views crystallized by John C. Calhoun led the court to the Dred Scott decision — far from the intent of the Framers. Until the 1930s, social Darwinists dominated the intellectuals of the day and thus the court. Their reasoning was manifest in Plessy and Lochner.

According to Dr. Forte, Roe v. Wade is only one of the most recent examples. But Roe’s sheer egregiousness had the unintended effect of mobilizing legal scholars toward the philosophy of Originalism, which has in only three decades became the dominant force in constitutional law. Even its opponents now have to at least try to present their arguments in Originalist terms. Says Dr. Forte:

Originalism has provided the common normative grounding of the judicial craft. Thus Justice Stevens and Justice Thomas can debate the original understanding of the Qualifications Clause in the term limits case. Justice Scalia and Justice Thomas debate whether the history of our struggle with England informs a First Amendment protection of anonymous political speech.

Dr. Forte credited a number of scholars and leaders for the advance of Originalism, among them John Hart Ely (a liberal devotee of the Warren Court whose scathing attack on Roe in the Yale Law Journal helped expose the moral bankruptcy of non-interpretivist jurisprudence), William Rehnquist (who as an Associate Justice was for so long a voice in the wilderness for federalism), Robert Bork and President Reagan’s Attorney General Edwin Meese.

Dr. Forte closed his remarks with the statement that:

Homer Plessy lost his Constitution because the judges thought they could have it their way. As judges rediscover Originalism, they are at the same time redeeming their craft and giving back to us our Constitution. [Emphasis added.]

Afterward Tech’s Prof. Angela Laughlin presented the liberal critique of Originalism, which boiled down to: (1) It isn’t always possible to find original intent; (2) When you can, it isn’t necessarily desirable to go with it because non-interpretive jurisprudence can essentially update the Constitution to our more modern sensibilities more easily than the cumbersome amendment process can; and (3) If you can’t agree on the original intent, why not err on the side of the common good (or social justice… or whatever liberal euphemism she used).

Dr. Forte responded with the analogy of wedding vows. If your wedding vows are the Constitution of your marriage, how ethical is it for the husband to say years later, “I know I said that 15 years ago, but my views have evolved — and her name is Jennifer.” In essence, if the Constitution can mean anything it means nothing.

During the Q&A period, Tech’s Prof. Dennis Olson raised the question of whether it is possible for right-leaning scholars, under the cover of Originalism, to engage in their own kind of judicial activism — using, for instance, the 9th Amendment rather than the 14th Amendment as a vast repository of unenumerated rights. Dr. Forte said that that could indeed be the case — and mentioned Randy Barnett, the libertarian law professor at Boston University, as a possible culprit — but that those persons wouldn’t be keeping faith the purpose of Originalism:

Originalism is not mechanical. One does not put a question into the Originalist machine, turn the crank, and get an answer. It calls for interpretation — honest interpretation of the Constitution’s original meaning. Men and women of good faith can come to different conclusions. What it does is ground judges in the moral obligation of their unique role.

It was a highly interesting presentation, and I encourage everyone to buy Dr. Forte’s book, The Heritage Guide to the Constitution. The book is a clause-by-clause analysis of the Constitution with in-depth analysis of the history and case law surrounding just about every sentence of the document. Over 40 judges, law professors and political scientists contributed, including Judge Douglas Ginsburg of the D.C. Circuit Court of Appeals (President Reagan’s second choice to replace Lewis Powell on the Supreme Court, after Bork and before the awful Anthony Kennedy), the University of Chicago’s Richard Epstein, UCLA’s Eugene Volokh (as in The Volokh Conspiracy), and Roger Clegg of the Center for Equal Opportunity who will be speaking at Texas Tech in April (look for more coverage of that when the time comes).

Does anyone else think this is being blown way out of proportion? Seems like another sorry attempt to sink the Bush Presidency.

From the Conway’s excellent blog on NR:

The hunger to win is a natural instinct and the longer one goes without such sustenance, the more serious the appetite and the more desperate the means to satisfy it. But these three magic words, “he can/can’t win” bear at least two negative consequences on the electoral system: First, they reduce the pro-competition, free-market Republican party to a top-down organization that bulldozes the field and picks the winner before the voters have had a chance to assess all candidates, and; second, they allow horserace questions of who is beating whom to dominate the polling and the discussion about polling rather than much more important concerns like leadership, vision, positions on issues, past record, current statements, and personal qualities.

The key there is the sentence I highlighted. The urge to find “someone who can win” means the top down party we see today that has so damaged the grassroots. It is why I, and countless others, who decide to run “against” the party get treated so poorly even though we bring new voters into the party and excite the base about an upcoming election. I will probably end up registering dozens of high school students to vote AS REPUBLICANS in the upcoming election, they will do so because they know me personally or they know my brother personally. Yet you can bet many of them will remain Republicans for the rest of their lives. Would this happen without a competitive primary, no way.

Another case in point, the Casey-Rendell primary in 2002. Everyone thought that Rendell had been so badly bloodied by Casey spending millions to basically ruin Rendell’s image that Republican candidate Mike Fisher could walk to an election. Well, in fact, what happened is Rendell’s name ID was sky-high, he had a battle tested campaign team, and millions in earned media, whereas, Fisher spent all spring raising money and laying low. The result: Rendell wins big.

Here

Jim Webb, conservative, military man, socially conservative, pro-Vietnam, Democrat Running for Senate.

Read more here

A great, great article by Fareed Zakaria on the decline of Europe across the board. Though I think the demographic changes he mentions almsot in passing on the second page should be the most concerning. Put quite bluntly, Europeans stopped having kids. This means they have to rely on immigrants to support their ever expanding welfar state. It is a total disaster and the total collapse of most of the welfare state policies are on the near horizon. Its bad, and sadly, there aren’t any Margaret Thatchers out there to fix the problem.

People have argued that Europeans simply value leisure more and, as a result, are poorer but have a better quality of life. That’s fine if you’re taking a 10 percent pay cut and choosing to have longer lunches and vacations. But if you’re only half as well off as the U.S., that will translate into poorer health care and education, diminished access to all kinds of goods and services, and a lower quality of life. Two Swedish researchers, Frederik Bergstrom and Robert Gidehag, note in a monograph published last year that “40 percent of Swedish households would rank as low-income households in the U.S.” In many European countries, the percentage would be even greater.

What say you readers?