Junior High
It was way, way back in eighth grade American History. We learned about the excitement of the American Revolution: that amazing time of Enlightenment Ideas put into practice through military force. We marveled at the story of the Continental Army. As the musical Hamilton so aptly put it; “…out-gunned, out-manned, out-numbered, out-planned…” against the most powerful nation in the world; snatching victory from certain defeat.
But then the experiment of America seemed to fail. The states squabbled, unable to cooperate or to govern. The Founding Fathers rose again to save the experiment. They wrote THE CONSTITUTION, a marvel of practicality and compromise that seemed to set the nation on a steady course towards its “Manifest Destiny.”
But there were soon arguments and a falling out among those Founders. Our history teachers made us try to wrap our adolescent brains around the concepts: “Strict Interpretation” and “Loose Interpretation.” The Founders argued about what the document meant, as if they didn’t understand what they had put to paper during the hot summer of 1787 in Philadelphia.
It’s when a lot of us drifted away from American History. We waited for the violence and pathos of the Civil War to reignite our interest.
The More Things Change
But the same concepts that Jefferson, Hamilton, Adams and Madison wrestled with at the beginning of America remain unsettled today. Those same issues that began partisanship: the powers of Federal and State, the interpretation of the actual words in the Constitution, the conflicting rights of property and people: all are just as divisive today as they were 232 years ago.
Division seems to be the theme of American governance in the 21st Century. The contrasts: Obama and Trump, Pelosi and McConnell, ICE raids and sanctuary cities; are extensions of the original arguments between Hamilton and Jefferson. This contrast is most clearly seen at our center of Constitutional interpretation: The United States Supreme Court.
The “strict interpreters” of our eighth grade lessons have a slightly different name today: “originalists”. And, oddly enough, the have taken on the name of “Federalist” and the silhouette of a leading “anti-Federalist,” James Madison.
The Federalist Society believes in the Constitution as “black letter” law. They view the document as ONLY interpreted by its plain language, and ONLY through the focus of the actual Founding Fathers. They disavow the more liberal view of the US Constitution as a “living, breathing document” that can be re-interpreted through the lens of current thought.
The Originalists in Power
The “Originalists” have the majority of the Supreme Court, five seats out of the current nine justices. The other four, in contrast, see the Constitution as interpreted by the realities and priorities of our time. Sure the Founding Fathers didn’t consider women’s rights, they weren’t very far from the concept of women as “chattel property.” And the rights of diverse gender choices? Hard to imagine Washington or Adams having that conversation (though we know those alternatives existed even then.) So it’s not unreasonable to say that the Constitution has in fact altered since 1787. It has changed to meet our new expectations.
The Originalists would say that to change the Constitution requires an amendment: that’s what the “black letter law” of the Founding Fathers decreed. And the United States has done that when it came racial equality and women’s voting rights. But the Court over the years has looked at our changing world, and reinterpreted the meanings of the Amendments to include more than the Founding Fathers could ever have conceived.
The Federalist Society has brought the Originalists back into full control. Roe v Wade, the right of a woman to control her own body, is based on interpretation of the 4thand 14thAmendments. That interpretation now hangs by a thread; clearly there are five who would, given their preferences, overturn it. But the Federalists are also dedicated to the idea of stare decis, that the precedence of previous court decisions is highly valued. So the fate of women’s choice will depend on which they value more.
Not Just in the Courts
Attorney General Bill Barr is a member of the Federalist Society, and a long proponent of the power of the Executive in the Constitution. Barr believes the President has nearly unlimited authority over his departments and agencies, and can change their leadership, procedures, and regulations at will. He is putting his “money were his mouth is,” leaving retirement to become Attorney General once again. He has become Donald Trump’s “Roy Cohn;” the attack dog that the President wanted to fend off the cries of impeachment.
Chief Justice Roberts is also a proponent of Executive authority. In the “census question” case, it was only the obvious lies told by Secretary of Commerce Wilbur Ross that prevented Roberts from ruling for the President. And even then, he allowed the President a “loophole” to return to convince the Court.
And of course, Mitch McConnell, Republican Senate Majority Leader, is the hero of the Originalists movement. He, almost single handedly, has made the Federalist Society a dominant power in our government. Like the midnight judges of John Adams fame, McConnell is packing our Federal Court system with lifetime appointees – all with impeccable Society credentials. For some of these judges, that’s the only qualifications they appear to have to sit on the bench.
Under Cover of Trump
It is easy to look at our divisions and see only Trump. But under the cover of Trumpism, the same old fight that Hamilton and Jefferson fought at the beginning of our Democracy is still raging. The names and hairstyles have changed; but the principles remain the same. Beneath the constant maelstrom that is the Trump Administration, McConnell, Barr and the Federalist Society are near to achieving their ultimate dream: control of the third branch of the government.
Good old eighth grade, it sure seemed a lot easier then.
