Utah Bar Journal

Part I
Subjective Approaches to Constitutional Adjudication
First I refer to emeritus U. of U. Law Professor John J. FlynnÕs article in the July/August 2005 Utah Bar Journal. ("Making Law and Finding Facts" - Unavoidable Duties of an Independent Judiciary) The particular type of approach advanced by Professor Flynn for adjudicating constitutional meaning has a distinguished pedigree. It is largely descriptive of the approach advocated by Edward H. Levi in his influential book, An Introduction to Legal Reasoning (1948). Professor Flynn argues that the judicial function inherently consists of a process in which judges "cannot avoid 'making law.'" He distinguishes "making law" from merely "apply[ing]" the law. This is the same distinction made by Alexander Hamilton in rejecting a judicial authority to make law. Hamilton wrote that the "judiciary can take no active resolution whatever..." and that it can exercise "neither Force nor Will, but merely judgment." (Federalist No. 78) Professor Flynn contends that in the judicial process of resolving cases "the way the law interacts with the facts" creates ambiguities that must be resolved by judicial law-making.

These ambiguities exist, says Professor Flynn, because "[t]he words used in our laws are not rigid boxes with fixed meanings to be mechanically applied to a dispute... Legal words are flexible concepts and tools for the analysis of disputes that arise in countless different circumstances." He indicated that the "words of law symbolize... normative propositions with evolving meanings in light of changing factual circumstances; evolving understandings of reality; reflections upon the history of society and its laws; meandering precedent dealing with the legal concept in somewhat similar circumstances; and changes in philosophy, morality and technology - indeed, evolutions in every field of human knowledge." Now indeed if words and concepts of law are so inevitably flexible, judges really cannot avoid making law. Furthermore, with such inherent flexibility of legal concepts, meaningful distinctions between the legislative and judicial function would be impossible except insofar as various procedures are established for bringing policy disputes before a decision maker. In our system that distinction consists of a process of legislative lawmaking initiated by a bill, as opposed to judicial lawmaking which commences with the filing of a petition and proceeds on a case-by-case basis.

The second article to which I refer is by U of U Law Professor Boyd Kimball Dyer in the January/February 2006 Utah Bar Journal. (A Conservative View of the Originalist View of the Bill of Rights) His view of constitutional interpretation acknowledges the legitimacy of a judicial "power to find new rights." He correctly points out that rights deemed by the Constitution's framers to be in need of protection were not all included in the Constitution. This is confirmed by the language of the 9th Amendment and original ratification of the Constitution without the Bill of Rights. Professor Dyer believes that as courts find and protect new rights, drawing their authority from "open ended" constitutional phrases, the Constitution counsels courts to avoid upsetting the balance of power "struck" by constitutional framers. According to Professor Dyer, any "flaw in Roe v. Wade" is not that the judiciary found a "new right... not expressed in the Constitution," but that the decision failed to appropriately promote and preserve the "Constitutional balance" of powers.

Thus, Professor Dyer's approach is a conservative call to judicial self restraint based on the balance of power suggested by the constitutional document. This approach is very similar to that advocated by another local luminary, the late Rex E. Lee, founding Dean of the J. Reuben Clark Law School, former U.S. Solicitor General, and former President of B.Y.U.2 President Lee also called for judicial self restraint based in large part upon the "nature and structure" of the Constitution's "allocation of governmental power." He acknowledged, however, given the "extraordinary breadth and vagueness" of the Constitution's "most important provisions" and the authority of judicial review, "five people - a majority of the Supreme Court - have the power not only to interpret the Constitution, but also effectively to amend it if they choose to do so, with little effective power in Congress, the President, or the people to reverse what the Court does in any particular case." They have such authority due to the existence of "a large overlap" of the judicial over the legislative function that "arguably reaches the total universe of legislative power."

The third article, also in the January/February 2006 Utah Bar Journal, by Thomas L. Murphy (The Dangers of Overreacting to "Judicial Activism"), is essentially an apology for vesting in the courts, rather than "elected politicians," final and authoritative determination of the boundaries and substance of constitutional law. Mr. Murphy joins the predominant theme echoed by a seemingly unending panoply of theories and explanations - many by highly esteemed academics - justifying this judicial supremacy. Most all such theories and explanations, including the two types noted above, ground judicial authority in something outside of the constitutional text, or they make the Constitution into a living and expanding document capable of an "idea, a set of principles, a penumbra or an emanation" not foreseen or necessarily intended by the Constitution's framers.

The problem with all of the approaches described above is that they all call for or allow judicial decisions without an objective grounding in the written Constitution and without any inherent limits as to constitutional jurisdiction or subject matter. The Constitution essentially becomes an empty vessel into which constitutional adjudicators "pour[] content... as they decide disputes that come before them on a case-to-case basis." (Lee) Most of these approaches do call for some restraint in the application of judicial authority by confining it within newly minted or modified traditional judicial processes. Some, however, simply argue the superiority of our particular constitutional system which trusts the policy making ability of judges as they decide constitutional issues. Nevertheless, none of these approaches is capable of providing a principled or effective assurance against decisions based on a judge's personal policy preferences or other purely subjective justifications. They are thoroughly subjective in both theory and application.

The following is a representative sampling of restraining applications and arguments employed to justify and legitimize subjective approaches to constitutional adjudication: "the long run... reaction chain between the electorate and the courts" through the "power of the President to appoint judges" (Lee); the "court's obligations to hear cases in open court and to write coherent opinions explaining the rationale of the decision" (Flynn); a court's careful articulation of "specific points at issue, a narrowing of the determinative factors, and to some extent care not to take unnecessary steps" extending judicial power (Edward H. Levi, "The Nature of Judicial Reasoning" 32 Univ. of Chi. L. Rev. 395 (1965)); judicial self restraint "based upon the premise that the Constitution is a balance of powers and rights that the courts should respect and preserve" (Dyer), including an appropriate choice and application of a judicial "standard of review" (Lee); supporting only judicial policy making "in the context of discrete cases... through the exercise of case-by-case decisional authority" where "[p]olicy development" is not the "primary judicial objective" but is only "incidental to the decision of actual cases, progressing only as necessity and experience mandate (Lee);" or the Court being specially situated to make decisions as the authentic spokesman of the people or to correctly decide policy issues according to something like Dworkin's "justice" or Rousseau's "general will."

Because the above described approaches to constitutional adjudication are so thoroughly subjective - even with their restraints of process - they are simply incapable of being squared with a devotion to popular sovereignty - a principle, founded upon the equality of all men's natural and unalienable rights, that "Governments... derive[] their just powers from the consent of the governed." Through the vehicle of judicial review, all such approaches essentially empower the American judiciary, and particularly the Supreme Court, as supreme overseers of American public policy.

This judicial supremacy is the order of the day especially when the claim is made, and it is currently the predominant claim, that Supreme Court decisions constitute precedents which prospectively bind all other branches of government and all persons under the ConstitutionÕs authority. This claim is largely based upon a combination of the Constitution's supremacy clause and stare decisis. Of course it doesn't apply to future Supreme Courts because the Supreme Court is considered supreme and bound only to consider such precedents as suggestive of a ground for decision.
Now one might argue that in large measure American public opinion seems to accept and is comfortable with our current regime of judicial supremacy. Isn't that sufficient for consent? As Mr. Murphy puts it, "It is shocking to suggest that we live under tyrannical rule; we do not. Judicial activism is not a form of tyranny, but a pejorative label used to distinguish judges and judicial opinions with which we do not agree." I answer as follows: Even the most ruthless and powerful dictators must give prudential consideration to public opinion, with the smart ones manipulating such opinion to further increase their influence and power. Kings, dictators, and aristocrats can, do, and oft times must pander to public opinion. Some may even genuinely desire and try to govern "for" or in the best interest of "the people." Maybe benign rule by philosopher kings is what some want for America? In America's constitutional system, however, such governance by the judiciary, even if it is benign, is a subversion of the people's "consent" and government "by the people."

Some have argued that judicial lawmaking in the Constitutional context is consistent with Founding America's common law traditions where judges for centuries previous to the founding were engaged in the development of law. One commentator has suggested that the Constitution could perhaps be described as "a charter for common-law-type adjudication of the evolving meaning of key provisions." Such constitutional adjudication would have "the flexibility and dynamic character of a judicially administered common law" as opposed to an interpretive approach reflecting "the relative certainty of a legislatively enacted code of laws' and where "[t]he judge's contributions come case-by-case on factual ground not of his own choosing and must bear fruit, if at all, on the branch and root of precedent." (Oaks, "Judicial Activism" 7 Harv. Jour. of L. & Pub. PolÕy 1 (1984).) Comparing current common-law-type approaches of constitutional adjudication to the real thing, however, reflects a misunderstanding or misapplication of the English common law tradition and the development of the common law through case law adjudication in at least three ways.

In the first place, it takes longstanding common law traditions and rules which bear upon statutory interpretation and makes them, if not irrelevant, merely optional. These rules could be summed up as constituting customary and common sense judicial practices Ð tried, tested and proven over centuries - which have the object of applying in the courts of law the will of the statute's maker or the intent of the law's framer.

Secondly, the ultimate ground of the common law system generally, and of traditional common law case by case adjudication particularly, was the consent of the people. The traditional common law was consensual because it was customary law. Judicial precedents, according to Sir Edward Coke, were not actually law, but were the best evidence of what the customary law actually was. And the law was built over a "succession of ages" and "fined and refined by an infinite number of grave and learned men, and by long experience." (Coke's Institutes) Blackstone taught that the unwritten common law achieved the status of law only Òby long...usage, and... universal reception throughout the kingdom... [being] expressed or sanctioned by the tacit and unwritten customs and consent of men.Ó (References to Blackstone are from his Commentaries on the Laws of England.)

Thus, according to Coke, through the development of the custom based common law subjective adjudication was avoided as "the old rule [was] justly verified of it... No man (out of his own private reason) ought to be wiser than the Law, which is the perfection of reason." Although custom, and thus consent, is a possible ground for making common-law-type constitutional adjudications, such has not generally been the practice or aim of those who exercise an authority of subjective judicial review. In the first place, they have abandoned the traditional common law rules of statutory interpretation as an end run around the explicit consent of majorities. Why then would they bind themselves to the consent required by customary law? By eliminating the requirement of compliance with common law rules of statutory interpretation, a court releases itself from any obligation to the intent of the laws' makers and thus constitutes itself, at least in a particular case, as an authority superior to the law-making body. In the exercise of judicial review the American courts thus become unaccountable and superior, in a particular case or controversy, to what John Marshall called the "original and supreme will" of the people as expressed in the written Constitution. (See Marbury v. Madison 5 U.S. 137 at 175 (1803).) Whether such decisions are based on the people's consent of custom is entirely left up to the discretion of each individual judge or judicial body.

This brings us to the third way that subjective "common-law-type" constitutional adjudication departs significantly from the common law tradition. It is in the hierarchical application of common law precedent, or "stare decisis," based upon the Constitution's supremacy clause. Such application affirms that the Supreme Court's subjective decisions are not only binding on the parties before the court, but are prospectively binding on all other lower courts, all other governmental agencies and branches of government, and all others under the authority of the Constitution. This gives the Supreme Court a decisive and a "from the top down" authority over the development of a type of unwritten judicially developed law all based on the authority of the Constitution. Such an application of stare decisis is utterly contrary to the common law tradition. Customary law was never authoritatively modified by one or even a few decisions. As an inherently customary law it couldn't be so. Yes, new applications of customary law were accepted as valid precedent if they were consistent with the overall custom of the common law. But to "make" customary law, decisions had to be ratified by practice and reconsideration over time. Furthermore, the common law knew nothing of a "supreme court" superior to the supreme legislative authority. Yes, America's new constitutionalism did provide an implicit authority of judicial review to declare even laws or acts passed by national and state legislatures unconstitutional when "repugnant" to the written constitution. But at the founding such judicial authority was deemed inferior to the sovereign will of the people as expressed in their approved constitutional document. All branches of government, including the federal judicial branch, derived their authority from that same source.

The acceptance and prevalence of subjective constitutional adjudication has turned the common law tradition on its head. Still, much of the current practice of constitutional adjudication is consistent with the common law tradition in its forms - case by case adjudication commenced by petition. But the substance is gone.

There are two primary reasons many accept subjective approaches to constitutional adjudication. The first is that many deem objective interpretation of the Constitution according to the intent of its framers to be unworkable, if not impossible. My explanation in Part II of how such adjudication should proceed responds directly to that view. The second reason is the erroneous acceptance of an idea that positive human law "is that rule of action prescribed by some superior, and which the inferior is bound to obey." This faulty definition of human law as set forth by Blackstone was accepted also by many otherwise very good natural law philosophers. According to American founder James Wilson, the "artful use of 'superiority' in politicks" has been a tool of "despotism" that "destroy[s] true liberty" such that "the science of government ha[s] been poisoned to [its] very fountains." (The Works of James Wilson 103 (1967) at 103) The correct view is that "the sole legitimate principle of obedience to human laws is human consent." (Wilson, Works 180) Of course to Blackstone and during his time the English Parliament was "the superior." Americans understood things differently. They believed the people themselves, and not their legislature, to be the supreme sovereign authority. Through the Declaration of Independence they taught that because each person was created with equal and unalienable natural rights, including the right to govern himself, no other person had authority to govern him without his consent.

Now if we take and fit the judicial review of American constitutional government under a conception of law as the rule of a superior to an inferior; and if we join that philosophical position with the belief that Constitutional interpretation according to the intent of its framers is impossible or unworkable; and if we further unite those two notions with a view that traditional common law judicial practices are consistent with an American founding "intent" that judges engage in subjective adjudications of vague and open ended constitutional provisions; we better understand why even many modern American conservatives who believe they support the natural law principles of the Declaration also support and accept subjective approaches to constitutional adjudication. One such conservative wrote, "Orderly government under a constitutional system requires that the final authority to say what the Constitution means be vested somewhere. For several reasons, history, common sense and the independence of the judiciary among them - I conclude that the responsibility rests with the courts." (Lee)

Part II

Originalism
I now turn to consideration of a fourth Utah Bar Journal article in the September/October 2005 issue by David R. McKinney (The Tyranny of the Courts). Mr. McKinney trots out a theory or view of constitutional interpretation that is appropriately labeled by Professor Dyer as "Originalist." Originalism, or original intent adjudication, constitutes a theory or view which promotes a judicial interpretation of the Constitution according the "original" intent of the Constitution's framers. Such interpretation is the only possible doctrine or method of judicial interpretation objectively and verifiably grounded in something other than a court's subjective judgment. For in the interpretation of any written text, if the intent of the author when he wrote the work is not the guiding objective then the subjective view of the interpreter is the only possible alternative. Thus, however inadequate may be Mr. McKinney's particular version of originalism, it is the only interpretive approach that can square judicial review with America's founding principle of government by consent of the people.
Original intent approaches have been criticized as not being flexible enough for good government and for unwisely freezing American governance in a dead past. This criticism misses the mark because the Constitution was never intended to cover every possible or imaginable issue that might come before a court. Although the Constitution's primary underlying purpose was to protect individual and unalienable natural rights, even many such rights not specifically mentioned such as the right of self-government, its primary and most effective method for such protection was in setting forth a recipe for the basic power structure of American government. Many important substantive and procedural issues of societal government are just not encompassed within that relatively short document. They are left up to sundry governmental and nongovernmental institutions quite adaptable to modern wants and conditions.

Perhaps the most compelling argument against an originalist approach is that so many years of subjective and authoritative constitutional decisions have passed that a return to originalism would require extensive and unacceptable change in current practices. Because that criticism offers only an excuse for continuing subjective adjudications and is a practical rather than a principled criticism, I will not address it here.

I thus join Mr. McKinney in his view that original intent interpretation is the proper and necessary method for constitutional adjudication. I do, however, have a very important and fundamental quarrel with Mr. McKinney's brand of originalism. He wrote,

"Despite the philosophical motivations behind the Constitution, the people did not adopt a philosophy as their law. They did not adopt an idea, a set of principles, a penumbra, or an emanation. They adopted certain language..."

In this, Mr. McKinney rejects a judge's subjective choice of a particular moral or philosophical ground for constitutional decision-making, which I also reject. But in this he also rejects any use of the Declaration of Independence in construing constitutional language. In fact, the principles represented by the moral and political philosophy of the Declaration were intended by the Constitution's framers to be, and indeed should be, a very important part of interpreting the Constitution. Consideration of the contextual backdrop of any text is important in its interpretation according to authorial intent. This is especially true in the case of the United States Constitution as it is a constitution of statutory language written within the context of the English common law tradition.

The historical English common law understanding of statute, as reaffirmed by Blackstone, was that it was either "declaratory of the common law, or remedial of some defects therein." Thus, in large measure interpreting a statute under the common law consisted of understanding it in relation to or in light of the traditional common law. Similarly, in construing the Constitution anything that could provide an indication as to what the framers were trying to accomplish in restating or continuing certain traditions and practices, or in changing and remedying the defects of such, would be appropriately employed.

Now when we understand that the Constitution was not only written in the context of the common law tradition, but that much of its language drew upon common law concepts, meanings, and terms of art, (for several examples see Robert Clinton, God and Man in the Law 96-103 (1997)) it seems obvious that finding its intended meaning would certainly include a look backward to such concepts, meanings and terms of art. Furthermore, the common law tradition included not only words, legal concepts, and their meanings, it also included institutions and even a basic philosophy. Deeply embedded in the common law and its supporting political systems was a moral and political philosophy at one with the twin principles of government by consent and natural law-derived rights. These principles formed the foundation for customary and prescriptive English rights and liberties. Because of the ebb and flow of various institutions and ideas sometimes contrary to these bedrock principles, consent and natural rights were not always front and center in England. But those principles are what made the common law so durable. Frederick William Maitland, the esteemed English legal historian, wrote,

"The English common law was tough, one of the toughest things ever made. And well for England was it in the days of the Tudors and Stuarts that this was so. A simpler, a more rational, a more elegant system would have been an apt instrument of despotic rule.... [The common law] was ever awkwardly rebounding and confounding the statecraft which had tried to control it. The strongest king, the ablest minister, the rudest Lord Protector could make little of this." (Selected Historical Essays of F. William Maitland 127)

Leading up to 1776, the consent of customary common law had been slowly developing into a more explicit consent of electoral or democratic representation in both England and America. It came faster in America. Nevertheless, even after their break from the English crown in 1776 (they had already rejected the idea, if they ever believed it at all, that they were appropriately governed by parliament) Americans continued to claim the English common law as their own. But it was received only - as good common law would require - as it suited their particular circumstances and disposition.

The American founders, with their Whig interpretation of history, argued that the bedrock consent and natural right principles of the common law tradition - such tradition being properly understood as a "blend of nature, custom, and reason," (Clinton, God and Man in the Law, at 102) - were the essence especially of their Saxon heritage in practice as well as in principle. These principles were deemed equally to uphold the consent of the common law as well as the explicit consent of electoral or democratic representation. Such principles - included in the Declaration - were believed to be founded upon human nature, to promote the common good, and to be discoverable by a combination of reason and even more importantly a "moral sense" (Wilson, Works 132-34) equally accessible to "all men." Being natural principles they were understood to be manifest in ancient tradition as well as being consistent with the "sacred oracles" of Christianity. According to Thomas Jefferson, as a statement of philosophy, the purpose of the Declaration of Independence was "not to find out new principles, or new arguments, never before thought of..., but to place before mankind the common sense of the subject..." and "to be an expression of the American mind.., [a]ll its authority [resting] on the harmonizing sentiments of the day..." (Writings, 1501 ed. Peterson, 1984)

As the American founders set out in the Constitutional Convention to create a government "by reflection and choice" (Federalist #1), they drew upon their deep insights into political and philosophical systems, both ancient and modern, and culled from them the very best of their ideas and practices. Furthermore, they referred to their own experience of government under the English throne, as well as government under the Articles of Confederation. In such American constitutionalism modern historian Gordon S. Wood saw a "peculiar moment in history when all knowledge coincided, when classical antiquity, Christian theology, English empiricism, and European rationalism could all be linked." (The Creation of the American Republic, 1776-1787 (1969).) It was in such a combination that the founders believed and hoped they had found a lasting "empire" and "rule of laws and not of men."3 And a proper approach to constitutional interpretation should consider the entire backdrop of that moral and political empire.

The interpretive importance, particularly of the Declaration of Independence, was certified in 1825 by Thomas Jefferson and James Madison. They wrote, "that on the distinctive principles of the government of our State, and of that of the United States, the best guides are to be found in 1. The Declaration of Independence, as the fundamental act of union of these States...." (Writings, 479). Abraham Lincoln - a philosophical and political heir of the founders if there ever was one - also understood the important place of the Declaration in American constitutionalism. He described the American "Union" and "Constitution" as a "picture of silver... framed... [and] made... to adorn, and preserve" the "apple of gold" that is the "principle of 'liberty to all'" announced in "that immortal emblem of Humanity" - the Declaration of Independence. (Works, 4:169; 2:547, ed. Basler 1953) His "four score and seven years" language at Gettysburg highlighted the Declaration's importance as a major constellation in American constitutionalism. It indicated 1776 - and not the constitutional ratification date - as the date of America's birth as a nation. (Harry Jaffa, A New Birth of Freedom 189 (2000)) With a true conception of the Constitution, its relationship to the Declaration, and the Declaration's true meaning of "all men," Abraham Lincoln understood that the "temple" of American constitutionalism "built" to preserve the Declaration's principles of equal liberty, called for "gradually remov[ing] the disease" and "evil" of slavery from the land. (See Works 2:546-47). His understanding and its contradiction by secessionists led to civil war.

Now interpretation of the Constitution in light of its historical backdrop, especially including the Declaration, is consistent with the traditional common law judicial practices and institutions current at the founding. It is also consistent with the common law judiciary's traditional rules of statutory construction. Blackstone summarized such rules as follows: "The fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and the reason of the law." (Commentaries) These rules can be summed up into a combination of three general rules with each of them often used in conjunction with, or as an exception to, one of the others. (See Clinton, God and Man in the Law 111-117) First, we have the "plain meaning" or "literal rule." Second, is the "mischief" or "social purpose rule" (sometimes called Heydon's rule from Heydon's Case (1584) reported in Coke's Reports). And, third, we have the "golden rule." The first two rules are more or less self explanatory. The third is primarily an exception to the plain meaning rule and authorizes departure from the literal interpretation of unambiguous language in the case of an absurd result.

Given the history and status of common law judicial institutions at the time of the founding, employment of such rules in constitutional adjudication would be necessarily implied by the very use of constitutional terms such as "judiciary" or "judicial branch." Thus, the common law rules of statutory interpretation, along with their underlying purpose as a tool for finding the intent of the law's maker, would indeed be required as part of the constitutional framers' implied intent. In a similar manner, and grounding his argument on the underlying theory of American government only hinted at in the constitutional text, Chief Justice Marshall found an implied recognition of the Court's constitutional authority to interpret the Constitution as a law and order a remedy - judicial review. (Marbury v. Madison 5 U.S. 137 (1803)) In fact, finding a constitutionally implied and required use of statutory rules of construction as well as an implied authority of judicial review are both constitutional applications of the social purpose rule. The frequent use of common law rules of statutory interpretation, especially prominent in early constitutional decisions, indicates an intent and expectation that they be employed in constitutional adjudication.

Now an "originalism" like that of Mr. McKinney, denies that there is anything to be taken from the richness of the Declaration's moral and political philosophy and much of the common law tradition. He is not alone in his approach. Many very prominent originalists are of the same stripe. Former Chief Justice Rehnquist said that if "a society adopts a constitution and incorporates in that constitution safe-guards for individual liberty, these safeguards do indeed take on a generalized moral rightness or goodness. They assume a general social acceptance neither because of any intrinsic worth nor because of any unique origins in someone"s idea of natural justice, but instead simply because they have been incorporated in a constitution by a people." ("The Notion of a Living Constitution," 54 Tex. L. Rev. 693, 1976) Similarly, Judge Robert Bork wrote that in determining "value judgment... [t]here is not a way to decide these questions other than by reference to some system of moral or ethical imperatives about which people can and do disagree. Because we disagree, we put such issues to a vote and... the majority morality prevails." (The Tempting of America 259 (1990)) Likewise, Justice Scalia has said, "The whole theory of democracy... is that the majority rules; that is the whole theory of it. You protect minorities only because the majority determines that there are certain minority positions that deserve protection." (Address at Gregorian University in Rome, 1996 - www.learnedhand.com/scalia.htm)

These prominent originalists reject the founding doctrine and "sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate which would be oppression." (Jefferson, Writings, 492-93) Jefferson declared, "An elective despotism was not the government we fought for." (Writings, 108) Such originalists reject the natural law and its derivative unalienable natural rights of individuals and "their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God... That [such liberties] are not to be violated but with his wrath." (Jefferson, Writings, 289) These originalists are thoroughgoing legal positivists. And in constitutional adjudication the Declaration of Independence would to them be mere legal fluff.

I recently read a very fine 200 plus page book in defense of originalism titled Constitutional Interpretation (1999) by Keith E. Whittington. His criticisms of subjective constitutional adjudications were precise and devastating. His suggestions and arguments in favor of original intent interpretation were extensive, thought provoking and insightful. He argued that original intent and a theory of democracy were external "constructions" not required by the Constitutions' original intent. However, he made a compelling argument that a theory of democracy is the one best fitted for the logic of having a written constitution and that original intent is the interpretive method best suited to a theory of democracy. But in the entire book I did not find one mention of the Declaration of Independence. Why? He is apparently a legal positivist attached to original intent and democratic theory.

Although such soul-less originalism probably advances the cause of democracy or rule by majority more than do subjective approaches to constitutional adjudication, such an approach needlessly, and contrary to the intent of the framers, empties the Constitution of much of its rich original context and meaning. It also abandons us to a government where rights and limited authority are defined and determined by pure majoritarianism mitigated only by a constitutional text largely disassociated from its underlying purpose and philosophy. Such a "majoritarianism for its own sake" originalism ultimately undermines the moral argument for the superiority of government by the consent of the governed. Without a moral argument or convincing moral philosophy underlying a claim to democracy, then why not abandon originalism - especially when so many smart people say it's unworkable - and allow ourselves to be governed by a "living constitution" with a meaning subjectively and authoritatively determined by a majority of the Supreme Court? Why not government grounded on the divine right of kings? Why not government by the will of the proletariat as determined by the party? Why not something else - anything?

Yes, we desperately need a return to an originalist approach of constitutional adjudication according to the intent of the Constitution's framers. It is necessary to preserve government "of" and "by" the people. But in order to secure such government and also to have a government "for" the people, we need originalism with a soul - a Declaration of Independence soul.4

1. This article essentially constitutes a short summary of a 200 plus page book with over 1300 annotations written by the Author. The book is currently in finished rough draft form and the Author is exploring publication possibilities. The book is titled, for now, But Professor, It's Still Substantive: Objective Original Intent Constitutional Adjudication v. Subjective Approaches to Constitutional Adjudication.

2. The references in this article to Rex E. Lee are taken from the following sources: Rex E. Lee, A Lawyer Looks at the Constitution (1981); Preserving Separation of Powers: A Rejection of Judicial Legislation through the Fundamental Rights Doctrine, 25 Ariz. L. Rev. 805 (1983); Legislative and Judicial Questions, 7 Harv. J. of L. and Pub. Pol'y, 35 (1984); The Constitution and the Restoration, in Brigham Young University 1990-1991 Devotional and Fireside Speeches 67 (1991); Provinces of Constitutional Interpretation, 61 Tul. L. Rev. 1009, 1014 (1987); and Rex E. Lee and Richard G. Wilkins, On Greatness and Constitutional Vision: Justice Byron R. White, 2 B.Y.U. L. Rev. 293 (1994).

3. John Adams is often credited for making that phrase "rule of law and not of men" notable in American politics. He published it in an article in the Boston Gazette in 1774 and incorporated it into the Massachusetts Constitution in 1780; see John Adams, Novanglus Papers, Boston Gazette, no. 7 (1774); Adams attributed this phrase to James Harrington in his Oceana, (1656), whose actual words were an "empire of laws."

4. See, Thomas G. West, Jaffa Versus Mansfield: Does America Have A Constitutional or A "Declaration of Independence Soul," Perspectives on Political Science, 31 (Fall 2002), 235-46.