One of the criticisms made against originalism by historians is that originalism fails to take into account that word meanings change over time. In particular, historians argue that during important periods, such as the time leading up to the Constitution, word meanings changed. Therefore, originalism is problematic because it assumes that traditional word meanings are stable. Unfortunately, this charge by historians turns out to be largely mistaken. If some originalists assume that word meanings were stable, then that would be an argument against those originalists. But it would not condemn originalism generally, since nothing in originalism requires that word meanings be…
One of the most interesting aspects of the Trump candidacy is the way in which it involves a Republican (or, if you will, the Republican nominee) employing tactics or promoting programs that are related in some way to those used by the Democrats at times. This makes Trump much less attractive to those who favor limited government. But it raises the question whether he might be able—unintentionally of course—to raise the consciousness of the Democrats to the problems with their approach.
Start with strong executive power. President Obama and the Democrats embrace strong executive power. There are many reasons for this. One is that the Democrats want a government that can pass large numbers of regulations and is quick-acting. Another is that the Democrats do not want to be limited by the public opinion constraints of the legislature. But, of course, executive power is dangerous and is problematic, especially when one is on the receiving end of it.
While Republican Presidents have used executive power, they have not used it—especially in the domestic sphere—to the extent that Democrats have. And they have not played as fast and loose with the law as President Obama has.
Many people have the impression, not without reason, that a President Trump would be willing to aggressively use executive power. This concerns the Democrats, especially since much of Trump’s agenda is anathema to them. Could this persuade the Democrats that executive power is a dangerous thing that should be constrained? It is hard to say, but if Trumpian executive power doesn’t persuade them, what would?
Judge Merrick Garland may be the best for which constitutionalists can reasonably hope with a President Clinton or President Trump in the offing, but there is no basis on the record presented thus far for the popular press’ breathless conclusion—see, for example, here and here—that he believes in judicial restraint rightly, which is to say politically, understood.
The presidential nominating contests continue to befuddle prognosticators, but the consensus winner of the Syntactical Caucus of 2016 is already in. Whether Republican or Democrat, the next President will almost certainly display an unreasoning proclivity for the first person singular.
Constitutions built upon a separation of powers were not made to last. The conceit that executive and legislative branches of government might be set in equipoise, and balance each other off over the decades, was amusingly mocked by Oliver Wendell Holmes, Sr. in The Deacon’s Masterpiece (1858):
Have you heard of the wonderful one-hoss shay,
That was built in such a logical way
It ran a hundred years to a day…?
The secret to building a carriage, the Deacon thought, was to make each piece as strong as the rest, so that no one part wears out first. And as there’d never be a weakest spot, the shay would go on forever, just like the imagined Madisonian Constitution. Well, it lasted and lasted, the talk of the town, until 100 years to the day it all collapsed at once and the new owner found himself sitting on a pile of ashes. No part wore out first. Everything went simultaneously. “End of the wonderful one-hoss shay. Logic is logic. That’s all I say.”
The burgeoning literature on the Obama administration, one of the most lawless in U.S. history, includes Michelle Malkin’s Culture of Corruption (2009), Tom Fitton’s The Corruption Chronicles (2012), Gene Healy’s False Idol (2012), John Fund and Hans von Spakovsky’s Obama’s Enforcer: Eric Holder’s Justice Department (2014), Andrew McCarthy’s Faithless Execution (2014), and the many legal critiques of Obamacare. None, however, focuses on the damage the 44th President has done to the U.S. Constitution like George Mason University law school professor David E. Bernstein’s excellent new book, Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law.
Let the historians charting the growth of executive power take note of August 30, 2015, which is the day America became a nation in which Presidents could rename mountains and nobody asked how.