Over the past decade, left-leaning opinion makers have been at war against the U.S. Constitution and our Founders. The nomination of originalist judge Amy Coney Barrett to the Supreme Court has provoked renewal of the onslaught.
The assault takes several forms, which are discussed below. First, however, let’s see what triggered it.
The Constitution limits and distributes political power. American “progressives” almost universally favor a very powerful central government so most do not think highly of the Constitution. Throughout the 20th Century, however, they generally avoided direct criticism. Instead, they contended that the Constitution authorizes, or even mandates, their political agenda.
A good example is how “progressives” re-invented the Commerce Clause—the provision by which the Constitution grants Congress authority to “regulate Commerce . . . among the several States.” When the Constitution was adopted, the term “regulate commerce” meant regulation (1) of trade among merchants and (2) of certain incidental activities, such as payment methods and transportation. This is pretty much how the courts understood the Commerce Clause for the ensuing 150 years.
During the 1930s and 1940s, however, a “progressive” Supreme Court issued a series of opinions holding that the Commerce Clause (allegedly augmented by the Necessary and Proper Clause) enabled Congress to control the entire economy—including activities the Founders thought quite distinct from “commerce,” such as manufacturing and insurance. Liberal professors backed the court’s decisions with books marshaling cherry-picked materials to “prove” that Congress’s Commerce Power was almost unlimited.
In like manner, the Supreme Court turned the Taxation Clause into a license for unlimited congressional spending and the Fifth and Fourteenth Amendments into national abortion and marriage laws.
Advocates of federal power had partly gutted the Constitution while outwardly honoring it.
Eventually, though, constitutional researchers exposed the game. In study after study, scholars demonstrated that the real meaning of constitutional words and phrases was nothing like what the “progressives” claimed. Those scholars came to be called originalists. Their work was so rigorous that even liberal judges respected it, even if they did not always follow it.
The flood of evidence showing the “progressive” version of the Constitution to be wrong has not stopped some from doubling down. A recent example is an October 16 New York Times column by Jamelle Bouie. Bouie contends that we shouldn’t be following the 1787 Constitution because the three post-Civil War amendments (13th, 14th, and 15th) destroyed it.
It is true that those amendments made important and worthwhile changes. But they also left the underlying system very much intact—as the Supreme Court has recognized repeatedly. Contentions like Bouie’s are simply not well-grounded enough to reverse the fact that the “progressives” have lost the argument over constitutional meaning.
And that is why the Left has pivoted to assail the document itself. Their attack has least three prongs:
- The first is that the Constitution is illegitimate because the framers exceeded their authority by proposing a new basic law. Recent scholarship shows that this argument is based on a misunderstanding. The framers had full authority to do what they did.
- A second prong is to assail the Constitution as “undemocratic.” This is ironic coming from people who applaud the Supreme Court’s undemocratic social policy diktats. More importantly, most of the Constitution’s limitations on democracy ultimately protect democracy. Thus, the First Amendment prevents popular majorities from closing down the speech of minorities, and the Electoral College prevents regional crackup and elections in which unpopular candidates win the presidency by tiny pluralities.
- The third prong of attack follows the familiar lines of “progressive” grievance politics: The Constitution doesn’t, or at one time didn’t, give fair treatment to minorities, women, etc.
For example, “progressives” often try to link the Constitution with slavery. In the December 12, 2012 New York Times, Louis Michael Seidman alleged that the Constitution was adopted by a “group of white propertied men who . . . thought it was fine to own slaves.” Similarly, Bouille’s Times article says “the Constitution of 1787 established a white republic in which the right to property meant the right to total domination of other human beings.”
But none of this is true.
To begin with, the dominant view among the Founders was that slavery was absolutely not “fine.” The prevailing view was that slavery violated natural law and was doomed to extinction. Indeed, by 1787 several states had begun the journey toward abolition.
Nor did the Constitution create or mandate slavery or racial discrimination. These were creations of state law, and they varied from state to state. The Founders were forced to accept that situation to prevent America from fracturing into a multitude of nations constantly at war with each other, as in Europe.
Also false is the common claim that slaveholders adopted the Constitution. Of the public that ratified it, only a small percentage owned slaves. And perhaps as many slaveholders opposed the Constitution as favored it. In five states, the ratifying electorate included free African Americans.
A related claim is that that the Constitution, and particularly the Electoral College, was polluted by the Three-Fifths Clause. A 2011 Time Magazine cover story asserted that “The framers . . . gave us the idea that a black person was three-fifths of a human being.” But the Three-Fifths Clause was not a statement about race. On the contrary, it reflected the Founders’s belief that slavery was an economically stupid system. Here’s the background:
- Most framers thought state representation should be based on state capacity to pay taxes, not on population; but
- capacity to pay taxes was difficult to calculate but population was fairly easy to calculate;
- among free people, population as a pretty good proxy for tax capacity; but
- an earlier congressional study had shown that slavery was so inefficient that a slave produced only about 60 percent as much wealth as a free person. So the Three Fifths Clause specified that any state that enslaved part of its population lost congressional representation accordingly.
This was hardly an endorsement of slavery!
In any event, when the Constitution was written slavery was still a worldwide phenomenon, as it always had been. The document ultimately facilitated its abolition and the resulting extinction of the Three Fifths Clause. Indeed, slavery has been gone entirely from the constitutional order since before most of our great-grandparents were born.
The Left’s gender-based attacks are just as absurd. Writing in the October 13 edition of The Hill, Katie Scofield’s derided the Barrett nomination: “The idea of a female originalist is oxymoronic. The framers of the constitution clearly did not believe that women should be accorded the full rights of citizenship, much less hold a Supreme Court seat.”
But the Constitution had no provision for discrimination based on gender, although such provisions marred most state constitutions. On the contrary, as I have documented in detail elsewhere, the Founders went through some effort to ensure that the Constitution (unlike most of its state-level equivalents) was written in gender neutral language. Indeed, one argument against the Constitution apparently was that if the document were ratified, it would permit a woman to be elected president!
Nor is the gender-neutrality of the Constitution surprising. The framers were enlightened men who knew that women voted legally in New Jersey and informally in some other states. The general status of women was rising in the 18th Century. The framers were consciously composing a Constitution for the ages, and certainly they could anticipate a time when other states would enfranchise and empower women.
Scofield depicts originalism in a way that demonstrates she knows little about the subject. She claims originalists oppose the Supreme Court’s 1954 decision banning segregated schools—apparently unaware of the leading originalists who support it. She asserts that originalism would force abolition of paper money, apparently unaware of unchallenged originalist findings showing that Constitution did authorize federal paper money.
As the examples set forth here demonstrate, the Constitution is one of those topics on which uninformed people feel licensed to spread utter nonsense. Unfortunately, when those people are “progressive,” the mainstream media too often gives them platforms to do so. We must read their writings with caution.
Robert G. Natelson, a former constitutional law professor, is Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Denver, a Senior Adviser to the Convention of States movement, and author of The Original Constitution: What It Actually Said and Meant.