Starting in the 1960s, jurists and scholars such as ex-New Deal liberal Raoul Berger, Supreme Court nominee Robert Bork, and Attorney General Edwin Meese charged the liberal activist justices of the Warren Court and the Burger Court with usurping legislative authority in violation of the intent and design of the Constitution. Sticking to Progressive “living constitutionalism,” liberal strategists pinned the “originalist” label on critics of judicial activism.
Even as it faced vigorous criticism, originalism was rightly recognized as a legal-theoretical problem worthy of philosophic and historical investigation. It was hard to deny, as constitutional scholar Richard Kay observed, that the issue of adherence to original intent was “vital in a political system where power is delegated and limited by a constitution.” In the view of historian Johnathan O’Neill, the doctrine’s initial expositors such as Berger “made originalism impossible to ignore.”
Since the unexpected—and, in certain circles, inconceivable—election of Donald Trump as President, federal courts have aggressively obstructed his executive orders on immigration, leading to complaints that activist judges are staging an insurrection or even a coup d’état against a President they consider illegitimate. I’ve indulged in a bit of this commentary myself, but—unfortunately—the problem is deeper and more serious than a few rogue judges resisting Trump’s policies. Much of the nation’s elites, and especially the legal class that dominates the judiciary, are in a bipartisan revolt against the bourgeois social order and the constitutional loyalties it underwrites. Trump’s election has merely exposed the extent of the longstanding (and widening) cultural chasm that divides the lumpenproletariat (Hillary’s “deplorables”) from the self-anointed elites.
The March 1 oral argument was an astounding anti-climax to a manufactured drama
In a prior post, I discussed the Pidgeon v. Turner case, now pending before the Texas Supreme Court, involving a taxpayer challenge to same-sex spousal benefits. Oral argument was held on March 1. The taxpayers challenging the city of Houston’s policy of granting same-sex spousal benefits to city employees were represented at oral argument by Jonathan Mitchell, a former Scalia clerk, former Texas solicitor general, and now a visiting professor at Stanford law school. The city of Houston was represented by Douglas Alexander, a leading appellate practitioner in an Austin law firm whose partners include former Texas Chief Justice Wallace Jefferson. The oral argument was superb, and both counsel fielded numerous questions from the fully-engaged justices.
The Supreme Court’s fractured decision in Obergefell v. Hodges (2015) required states to recognize same-sex marriage. Obergefell came less than 30 years after Bowers v. Hardwick, in which the court refused to recognize a right to engage in homosexual sodomy. In changing its mind, the Court effectively amended the U.S. Constitution with its Delphic utterances.
Under that document’s Supremacy Clause, all states must follow Obergefell. But what is the scope of that obligation? Are all legal distinctions involving same-sex couples now invalid? A case pending before the Texas Supreme Court frames that question.
On the Originalism blog, Michael Ramsey and Andrew Hyman responded to my post for Law and Liberty on the original understanding of substantive due process. Hyman disputes the definition of “liberty” I provided and asserts a different definition of “due process of law” in the Fifth Amendment, while Ramsey asks for more evidence that the definition of “liberty” given wasn’t unique to Thomas Jefferson.
What to make of Donald Trump’s interview with CBS’s Lesley Stahl last week?