JEREMY RABKIN: Constitutional Unease

...Many of these suggestions, as Sabato notes, revive ideas considered at the Philadelphia Con vention or considered more recently as proposed (or even partially enacted) legislation...

...One response to judicial overreaching was a demand for judicial restraint...

...Are the others too honest to adopt a false cover as “originalists...

...6 6 T H e a M e R I c a n s P e c T a T o R M a y 2 0 0 8...

...We are constantly told by commentators of the left that the current economic difficulties are the “worst” since the Depression, that the latest foreign policy mistakes are the “worst ever,” that the current Republican president is the “worst ever”—at least since the previous worst...

...I believe these polls for a simple reason: If there were any sizable public support for altering the Constitution, you would expect Democrats to invest a lot of effort urging amendments to give extra senators to the big states, like California and New York, that now get to send only two Democrats each to the Senate...

...S s e g r a e h r e h w ( t na e S e h t n n i a t n e s r p e r f o t a t i r e h t s i n r e d o - s o p d e z a r c e m s t o n the v o ery respectable t U m niversity t of V o irg s inia, ge stion e s, even t c o alls i to correct th e e extrem e e t imb l alance - ug s ’ o t a b a S o l l a e s o p o i t r a m , t a h e f A abato is a resPeCtable political scientist at limits o t n p r t ersonal o jo r f i am es ily c p ampaign c f ontribu s tions t . some overheated women’s college...

...Starting in the late 1930s, the Supreme Court repudiated many limits on federal authority that the Constitution had once been thought to impose...

...Not only do a resounding 74 percent oppose any such change in the Constitution, but 58 percent describe themselves as “strongly opposed...

...6 4 T H e a M e R I c a n s P e c T a T o R M a y 2 0 0 8 b o o K s I n R e V I e w Justice Scalia, in a brief foreword, reinforces the point: When he first joined the Court in 1986, lawyers sought to persuade the justices by appealing to “recent Supreme Court cases and policy considerations” without “a word about what the text was thought to mean by the people who adopted it...

...Now, he says, it is rare for “counsel [to] fritter away two out of nine votes by failing to address what Justice Thomas and I consider dispositive”: so “originalism is in the game, even if it does not always prevail...

...The Federalist Society has since grown into a national organization with local chapters at hundreds of law schools and alumni in distinguished positions throughout the government...

...Professor Sabato’s calls for “enlightened populism” and “a little rebellion” might be heard with more sympathy if the country were really in dire straits...

...But you might You might say the “originalists” agree on the question, what does the Constitution actually require...

...But Sabato was serious enough to do some “product testing” on his ideas...

...Toward the end of the Philadelphia Convention, James Madison warned against a proposal to cap the size of congressentatives...

...By the 1960s, the Court was elaborating new federal standards on a range of disputed social issues—regarding race, religion, sexual practices, electoral arrangements— and depicting them as newly found constitutional requirements...

...They could be adopted as a package at a new constitutional convention because, as Sabato again reminds us, the Constitution does provide for calling a new convention to propose amendments...

...Barring some calamity, the question for ordinary citizens perhaps goes the other way...

...But Brennan’s charge that originalists don’t agree is well documented here...

...The new organization, the Federalist Society, held its first national student conference in 1982 and quickly became a center of advocacy for (and debates about) holding judicial interpretations with the Consti tu tion’s original meaning...

...Do we really have more reason to trust those who would now put themselves forward for such roles than we do the men who fashioned the original Constitution...

...M a y 2 0 0 8 T H e a M e R I c a n s P e c T a T o R 6 5 b o o K s I n R e V I e w If you look at it that way, the American people may be optimists in many ways, but also rather conservative...

...He steers away from contentious social issues like abortion, affirmative action, or religion...

...There’s no better proof than Larry Sabato’s new book, urging a whole series of proposals for constitutional overhaul...

...A panel on “unenumerated rights”—on the idea that the Constitution was intended to protect rights beyond those specifically mentioned in the Bill of Rights—finds selfdescribed originalists on both sides, as does a subsequent panel on whether the “original” understanding was supposed to confine federal authority within relatively narrow limits, compared with powers left (or reserved) to the states...

...The trend reached its height along with a right to have students bused around to achieve mandated racial balances in public schools...

...He wants to extend the term of House members to three years but then consider limiting members to four terms...

...Steven Calabresi, one of its co-founders as a Yale law student in 1982 and now chairman of the society’s board, has done a service in bringing together a number of documents illustrating high points of the debate on “originalism...

...He wants to add amendments limiting campaign contributions from wealthy families, requiring presidents to consult Congress before committing the nation to war, and providing some form of national service requirement for young people...

...That might not be a problem if people didn’t much care what the Constitution actually says...

...There is most support for a constitutional amendment requiring judges to retire at 75—a very good idea, in my opinion, which 77 percent of respondents favor and 55 percent “strongly favor...

...In some ways, of course, it is not quite the same Constitution...

...The Founders left us a scheme of government that has endured through periods of great strain and, yes, through great changes in American society...

...He wants to gave the president a six-year term but without allowing for a second full term...

...Attorney General Meese emphasized, in his initial speech on the subject in July 1985, that judges who were not tethered to the original meaning of the Constitution would drift into entirely unprincipled improvisation: “A Constitution viewed as only what the judges say it is no longer is a constitution in the true sense...

...It’s a fair inference that politicians don’t call for this change because they don’t think it has any chance of being enacted...

...Small groups of students at a handful of distinguished law schools sought to challenge judicial activism in their own way by organizing an academic forum where challenging voices could be heard...

...The very idea of a constitution—which fixes and forms by the lines it lays down—seems to cut the other way...

...As the Obama campaign suggests, “change” by itself seems a word filled with magic for many on the left...

...But that’s only to say, it wouldn’t be a problem if we lived in a different country...

...Yet “originalists” remain a minority among judges and even more so among legal scholars...

...Justice Brennan’s response, in a speech at George town three months later, emphasized that original meanings were usually impossible to determine at this distance, but the Constitution remains “a sublime oration on the dignity of man…although the precise rules by which we have protected fundamental human dignity have been transformed over time in response to both transformations of social condition and evolution of our concepts of human dignity...

...Constitution—on the implicit premise that judges across the world are engaged in the same “evolution...

...If it’s going to be changed in fundamental ways, ordinary citizens will have to entrust a relatively small group of political or legal elites to select and fashion the appropriate changes...

...By similar margins they oppose calling a new convention...

...We have not attempted such a convention, but that shows, Sabato writes, that we are more timid than the Founders expected us to be...

...The book collects six speeches from the 1980s (three by Attorney General Edwin Meese, one each by Justice William Brennan, Judge Robert Bork, and President Ronald Reagan), along with transcripts from debates and panels sponsored by the Federalist Society over the past decade, mostly featuring law professors who have thought out distinctive positions on these issues...

...They can imagine better and don’t like to have their imagination —or the imagination of those in power, even judges—fettered by fixed standards...

...As it is, they seem to be solutions for problems that are not very deeply felt...

...rather than, what would be most convenient to say it requires...

...If even the “concepts” are in continual “evolution,” how do we even know what we’re supposed to be talking about...

...But at least you can say our progressives are restless...

...It is not a term that appears in any of our Founding documents nor in any of the debates of that era...

...If you call yourself “progressive,” you want to see change...

...With only somewhat less vehemence they oppose changing the president’s term or even removing the requirement that the president be a native-born American...

...Another was a demand that courts go back to upholding the actual Con sti tution, the Consti tution as it was originally understood by those who framed and ratified it or those who formally amended it...

...It may not be right to say “progressives” are simply more optimistic than conservatives or originalists...

...For the most part, he offers structural reforms rather than mandated policy outcomes, and even when it comes to structures and procedures, he tries to stay within the basic framework bequeathed by the Founders...

...Some important changes have been introduced by amendments, most notably those adopted after the Civil War to abolish slavery and assure that the states respect basic rights...

...Could we distinguish “fundamentals of human dignity” from a judge’s free associations in response to words like “fundamental” or “human” or “dignity...

...So Sabato proposes to maintain a Senate representing voters by states, but to add extra Senate seats for larger states in order to correct for the most extreme population imbalances between states...

...Another delegate had a quick response: “It is not to be supposed that the Govt will last so long as to produce this effect...

...Does that Constitution still fit...

...A quarter-century later, it’s still hard to figure out what Brennan thought he was saying when he invoked “human dignity”—which he invoked repeatedly, almost obsessively, in that speech...

...And here we are, some 220 years later, with more than four times as much territory and a hundred times as many people as the America of that time—and still living under the same Constitution...

...Can it be supposed that this vast country…will 150 years hence remain one nation...

...A chart published with this collection gives some indication of the society’s success in stimulating debate: articles on the topic of “originalism” were five times more numerous in 2002–06 than in 1982–86, when the Federalist Society was just getting started...

...Still, the terms of the Debate have remained, in many ways, much the same over the past quarter century...

...He tries to keep to proposals that might mobilize broad support...

...It turns out very few of them have much support...

...think that, if the actual or original meaning of the Constitution is so often disputed, anyone could embrace the slogans of originalism and simply call their own favored twists the “original meaning...

...He commissioned a reputable pollster to test public support for his proposals...

...Few of them embrace the alternative title offered by Judge Frank Easterbrook in one of the debates transcribed here: “inventionists...

...Constitutional Unease Originalism: a Quarter-Century of Debate Edited by Steven G. Calabresi (RegneRy, 360 pages, $29.95) a More Perfect Constitution: 23 Proposals to Revitalize Our Constitution and Make america a Fairer Country By Larry J. Sabato (WalkeR & Co., 342 pages, $29.95) b o o K s I n R e V I e w sional districts: if each district were limited to 30,000, expected population growth would, over time, produce an impossibly crowded House of Repre- Not all of our founDers were visionaries...

...Requiring Congress to approve entry into war—something already required by statute and already shown to be easily evaded—gets only slightly less support, along with states now have almost a hundred times as many people as the smallest but the same two senators...

...Certainly they are conservative about the Constitution...

...Somewhere in the debate, someone might point out that the Constitution itself (in Article V) specifically prohibits this change...

...You might say the “originalists” at least agree on the question, what does the Constitution actually require?—rather than, what would be most convenient at this point to say it requires...

...Reviewed by Jeremy Rabkin in the early 1970s when the Court claimed to find a right to abortion somewhere in the Constitution b K i JeoreTmy Rabkin is professor of law at George Mason University School of Law...

...Even the boundaries that define “the people”—those who “ordain” the Consti tution, those who agree to be bound by its terms, until properly amended—are out of favor among contemporary liberals: As Justice Scalia points out in his foreword, the latest trend, cheered in law school faculties, is for the U.S courts to invoke human rights pronouncements of foreign courts or international bodies to interpret ambiguous provisions of the U.S...

...Worse, worst, worst of all— these aren’t quite expressions of optimism...