The Right Coast

September 12, 2005
 
Ramsey on Originalism
By Mike Rappaport

Our colleague, Mike Ramsey, implicitly presents an argument for originalism:

To stand with Scalia and the Framers, we must accept that many of our own preferences are not constitutionalized, and that we can make them law only by persuading our fellow citizens to persuade our elected officials to adopt them, by law or constitutional amendment; there is no shortcut through the Court. To stand with Breyer, we must place faith in the wisdom of five lawyers – smart lawyers, to be sure, but ones who are not elected, not accountable (since they have jobs for life), and usually not trained in the practicalities of governing.
In this essay, though, Ramsey does not argue for originalism, but merely that the choice between Scalia and Breyer is our only choice.

Interestingly, Ramsey talks about Madion's proposal for a council of revision:

At the Constitutional Convention in Philadelphia in 1787, James Madison proposed a "council of revision," composed of Supreme Court justices plus the president, to review the wisdom of laws and reject laws it found unjust. The Convention refused, because that seemed to give too much legislative power to the justices. Instead, it created the federal judicial system to enforce what the Constitution's Article VI called "supreme Law."
Even though the Framers rejected this proposal, the Supreme Court has exercised a power to reject laws it regards as unjust or bad policy, whether or not the Constitution prohibits them. But this is not the only example where Madison proposed a constitutional provision, the Framers rejected it, and then the Supreme Court adopted it, notwithstanding the Constitution. Madison had proposed that the Federal Government be given the power to enact all laws in cases when the states were not competent to legislate or where the harmony of the union was implicated. The Framers rejected this proposal on the grounds that this vague language did not sufficiently limit the powers of the federal government. Instead, they chose to enumerate specific federal powers, such as the power to raise armies or to regulate interstate commerce. Once again, though, the Supreme Court chose to relax these limitations so that now, and for the last 70 years (despite the so called Federalism Revolution), Congress has had the power to enact essentially any law it desires, despite the Constitution's limitations on its powers.