In his review essay titled “Law on Shifting Sand,” David Gordon exposes a “pernicious” claim, advanced under “false pretenses,” that the case law promulgated by the United States Supreme Court represents the true meaning of the Constitution. Gordon calls this claim “pernicious” because, while it purports to be simply admiring the common law method in the way that libertarians like Friedrich Hayek and Bruno Leoni did, in fact such claims “cloak their statism in common-law language.” They endorse radical judicial activism by rejecting entirely the possibility that “the Constitution has a discernible original meaning that the Supreme Court has distorted.” They deny that anyone could ascertain the meaning of the Constitution by reading the Constitution—they argue that the Constitution means what the Supreme Court says it means, even in cases where the Supreme Court subverts the original meaning of the Constitution in order to advance progressive values.
According to these pernicious progressives, the Supreme Court does not distort the Constitution at all, but simply interprets it on a case-by-case basis. If Supreme Court case law seems to create novel legal principles that are not to be found upon reading the Constitution itself, the pernicious progressives see this as simply illustrative of pragmatic Supreme Court interpretation, without any intention or design to create new legal principles. However, as Gordon explains: “Their defense of common sense and pragmatism is not what it seems. They exalt into an unchallengeable absolute the current jurisprudence of the Supreme Court.” Even the most “radical” and “arbitrary” Supreme Court decisions are deemed to be merely common law interpretation. Gordon is right to point out that such radical judicial activism is not the common law method:
…the controversial decisions of the modern Supreme Court do not follow English common law practice. The court often enacts its own views into law, by “discovering” broad meanings of various provisions of the Constitution…. The Supreme Court…often enacts, in slapdash fashion, its own social views into law, with little pretense of attention to the words of the constitution.
The pernicious progressives deny that the Constitution has any “discernible original meaning.” Their argument is that because “scholars disagree on the original meaning of practically every important constitutional provision,” this means the provisions have no “pure” original meaning and it must be left to the Court to decide on the appropriate meaning in each case. Gordon exposes the fallacy of this argument. Originalists do not claim that the Constitution can be read in the same way one reads a dictionary or a shopping list, where the meaning of the words is plain upon merely reading the text and no further interpretation is required. Rather, as Gordon explains,
The originalist claim is that judges ought to be bound by the meaning of the Constitution it is their mandate to interpret: they ought not to engage in “creative” jurisprudence.… they should not concoct their own formulas for interpretation, in which original intent figures as but one of several grounds for judgment.
This type of dispute over the meaning of legislation has long given rise to political controversy. Two examples will be discussed here, one from the Reconstruction Era and another from the first Trump administration.
Interpretation of the Reconstruction Acts
When President Andrew Johnson came under fire, accused of obstructing reconstruction plans, his alleged crime was failure to implement the vision of the Radical Republicans who dominated Congress in 1866. In his book Reconstruction, William Dunning explains that, “Johnson was charged with systematically obstructing” the reconstruction process, even though he “had gone steadily forward on the lines laid down in the reconstruction acts.”
The majority in Congress—led by Thaddeus Stevens and Charles Sumner—had a revolutionary vision for reconstruction. They openly declared that their goal was “the destruction of the existing state governments in the South” which they saw as “stubborn” in their opposition to universal suffrage. Dunning’s discussion of the Reconstruction Act of March 1867 highlights their legislative goals:
…any rebel state, in order to be entitled to representation in Congress and to exemption from military rule, must conform to the following requirements: a convention must be held, consisting of delegates “elected by the male citizens…of whatever race, color, or previous condition”; a constitution must be framed embodying the same rule of suffrage… and the legislature elected under this constitution must ratify the Fourteenth Amendment.
Johnson regarded the destruction of state governments or exclusion of “rebels” from public life as unconstitutional—a view upheld by the Supreme Court in a number of cases—and therefore, he did not support the Radical Republican perspective. For this, the Radicals attempted to impeach him. They failed, given that he had not actually violated the law. Eventually his political enemies abandoned all pretense that he had broken the law. Dunning explains:
The trial began formally on March 13, 1868… The evidence here, as before the judiciary committee, fell ridiculously short of justifying the wild charges made by his adversaries.…
Under these circumstances the so-called trial became in its later stages a mere form. The question was, not whether the president was guilty of any crime, but whether he should be deposed from office because of his political opposition to the majority in Congress.
This example illustrates another paradox pointed out by Gordon: that the opponents of originalist reading ascertain whether the law is being followed “correctly” based on whether they like the outcome. In the example discussed by Gordon—the Fourteenth Amendment—the argument of the progressives is similar: that although the Constitution does not explicitly state that “separate but equal” racial segregation is prohibited, and the language of equality is compatible with providing “separate but equal” facilities, nevertheless the wording of the Constitution is to be overridden because that outcome—separate but equal—is regarded as morally abhorrent by those who want to promote social and economic equality or equality of life experience. Similarly, in the case of Johnson, the Radical Republicans argued that he violated the Reconstruction Acts, not on the basis that he had misread the legislation or failed to follow its requirements, but purely because they regarded his approach to Reconstruction as too reticent and his devotion to the “ancient constitution” as too conservative.
Donald Trump’s Department of Justice
A similar dispute arose in relation to the meaning and interpretation of the civil rights laws by the first administration of President Donald Trump. The Department of Justice was accused by civil rights activists of undermining the Civil Rights Act, by sticking strictly to the letter of the legislation in order to thwart its true aims. The New York Times reported:
In response to competing and sometimes contradictory civil rights interests, department officials say they are sticking with the letter of the law. “Our job is to be a law enforcement arm that protects the laws as Congress and the Supreme Court has written them,” said John Gore, the head of the Justice Department’s civil rights division.
The civil rights activists argued that, by sticking to the literal meaning of the legislation, the Trump administration was willfully thwarting the “true meaning” of civil rights as established in the case law. The suggestion was that, by adopting that approach, by abandoning the previously established priorities of protecting “gay, lesbian and transgender people and African Americans,” the Trump administration’s “choices have created a new overall position on civil rights that deviates sharply from years past.” The civil rights legislation is based on the non-discrimination principle, and it does not explicitly state that its goal is to advance “gay, lesbian and transgender people and African Americans.” Yet those who see the advancement of these groups as the “true purpose” of the civil rights laws are convinced that failing to read the law that way amounts to turning the law upside-down. CNN reported, for example:
But during the Trump administration, the civil rights division has been turned upside-down, refashioned to promote a curdled vision of America, both in its refusal to enforce existing civil rights laws and, more recently, by its actively working to undermine inclusive efforts at equal justice.
Politically-Contested Cases
These concerns are misguided. It is true that one way to thwart the intention and meaning of any legislation—or indeed of any words—would be to take words in their literal sense even when this leads to absurdity. But this is not what is being done in politically-contested cases. The notion that the goal of civil rights legislation is to promote “inclusive efforts at equal justice,” language derived from socialist theories of inclusiveness and equity, is just one reading of the legislation—one that is by no means uncontested.
Gordon argues that just because the meaning of the law is contested does not mean the law has no original meaning. Moreover, we can evaluate the different interpretations and judge which is better than another: “True enough, the meaning of various clauses is disputed; but it hardly follows that all these interpretations are equally good. The mere fact of difference of opinion poses a problem: it does not show that the problem lacks a solution.” Gordon adds that, “the fact that many legal theorists disagree” with a proposition, or that “plenty of difficult interpretative issues remain” does not mean a legal proposition is false; it means that the proposition is contested or controversial. Further, Gordon asks, “Are not many differences of interpretation the product of law professors anxious to import their own agendas into the Constitution?” A recent example of this is Ketanji Brown Jackson’s claim that only a biologist would know what a woman is, implying that it is, therefore, not clear what the word “sex” means in the civil rights legislation.
Political debates involving different legitimate interpretations of the Constitution may be difficult to resolve, but as Gordon points out, it is trite to observe that “not all issues of interpretation are simple.” The fact that the meaning of historic documents is not simple, but instead is the subject of debate and disagreement, is no reason to abandon the attempt to discern the original meaning of the Constitution.
