The latest venture to confront the new Donald Trump era is what Hugh Hewitt calls his “conservative playbook for a lasting GOP majority.” This is the subtitle of The Fourth Way, his new book. Hewitt, the Chapman University Law School professor, former Reagan administration official, and talk radio host, is everyone’s favorite nice guy—a charming media personality, fair-minded debate moderator, and the author, so far, of 17 books. This one is his most ambitious.
Archives for April 2017
Way back at the founding era, Americans took seriously the idea of the “consent of the governed.” As Greg Weiner noted recently, and as I’ve discussed elsewhere, this consent is exercised collectively, either in aggregating individuals’ votes or through voter representatives. But Americans at the Founding took seriously the idea that their consent could be conferred by their representatives. This belief has changed in the intervening couple of hundred years. On both left and right, Americans now talk about taxes being forced on them to pay for things for which they disapprove, even though their respective legislatures adopted the taxes. I doubt many Americans today seriously believe that they’ve consented to most of the laws and taxes that their legislatures adopt. What changed?
Mary Bilder, a distinguished legal historian, has written an oped arguing that the historical context and drafting of the Constitution shows that originalism is not a suitable interpretive approach for its text. Larry Solum has already asked her five probing questions about her understanding of originalism.
Here I want to focus on her historical claims and in particular her denial that the Constitution should be interpreted as a legal document. To be sure, not all originalists believe that the Constitution is written in the the language of the law, but Michael Rappaport and I do. Bilder’s exposition of an originalism that follows the Constitution’s legal meaning begins by attacking a straw man. She writes: “Originalism reads our Constitution as if it were a modern technical contract written by experienced lawyers or a contemporary statute written by a team of legislators and staffers, parsing and perfecting every word as they wrote it.”
The Constitution is not a contract or, as Chief Justice John Marshall noted, a code, but that does not mean it cannot be a legal document, interpreted with legal rules appropriate to a constitution, as were state constitutions at the time. And Mike and I have recently shown that text of the Constitution—its legal terms and its presupposition of legal interpretive rules– provides powerful evidence that it was written in the language of the law. But even if Bilder does not consider the text relevant historical evidence— which would be a strange position for a legal historian—her arguments from the context of its drafting are weak.
First, a team of lawyers was in fact responsible for perfecting the language of the Constitution.