The Clash of Constitutions

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The Clash of Constitutions

Published: Wednesday, October 28th, 2020 @ 4:29 am
By: John Locke Foundation ( More Entries )

Publisher's Note: This post appears here courtesy of the John Locke Foundation. The author of this post is Mitch Kokai.

John McGinnis writes at Law and Liberty about two competing views of the U.S. Constitution.

The Senate hearing on the nomination of Amy Coney Barrett to the Supreme Court shows that we effectively have two different Constitutions today, because the interpretive methodologies of Democratic and Republican political actors diverge so dramatically. Republicans embrace originalism as a mode of interpretation. Democrats aspire to a method that bends the Constitution toward "the moral arc of the universe" where that arc traces the parabola of progressive politics.

The implications of this divergence are profound both for the nation and for academic debates over originalism. We are in a period of political polarization unprecedented since at least the New Deal and probably since the 19th century. Successive waves of partisanship have now engulfed our fundamental document, threatening a kind of legal instability we have not seen in the last 150 years. It will likely get worse, particularly if Democrats go through with threats of court packing, which will inevitably beget more and more court packing, turning our highest tribunal into something more resembling the British House of Lords. Academically, the dramatic divergence shows that the positive argument that originalism should be followed simply because it is our law is inadequate because high officials do not agree on the rule of recognition-that is, the standard by which we determine what constitutes constitutional law.

The hearing was, of course, full of the posturing and cynical maneuvering that politicians bring to any televised event, particularly one so close to an election. But it was genuinely illuminating on the parties' professed approach to interpretation, even though those approaches would be applied inconsistently by many politicians. The Republicans all affirmed some version of originalism or suggested following the Constitution as written, sharply separating law from politics and policy.

The Democratic Senators on the Judiciary Committee, in contrast, have never been as explicit in simultaneously rejecting originalism and embracing an expressly progressive jurisprudence.

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