Shifting Sands of Constitutional Interpretation

 David Gordon's review essay, "Law on Shifting Sand," criticizes the idea that U. S. Supreme Court case law reflects the true meaning of the Constitution. He argues that this belief misrepresents the Constitution's original intent and promotes judicial activism.

• Gordon describes the view that Supreme Court jurisprudence accurately interprets the Constitution as "pernicious. " He argues that this perspective masks statism with claims of common law and rejects the Constitution’s original meaning.

• According to Gordon, "pernicious progressives" believe the Supreme Court does not distort the Constitution but interprets it pragmatically. They argue that novel legal principles emerging from case law are simply reflections of reasonable interpretation rather than distortions.

• He challenges the argument that the Constitution lacks a clear original meaning by pointing out that originalists do not claim it is easily understood without context. Instead, they maintain that judges should adhere to the Constitution's meaning rather than invent new interpretations.

• Historical examples illustrate disputes over legal interpretation, such as during the Reconstruction Era, where President Johnson's approach to reconstruction clashed with Radical Republicans. They accused him of obstructing their plans despite his adherence to the law.

• Gordon explains that political interpretations of the Constitution often hinge on whether individuals agree with the outcomes, as seen in debates over the Fourteenth Amendment's implications on racial segregation.

• Similar controversies arose during Donald Trump’s presidency regarding civil rights laws. Civil rights activists claimed Trump's Justice Department's strict interpretation disregarded the deeper intent of those laws, which they believed should promote inclusion and equality for specific groups.

• Gordon argues that differing interpretations of legislation do not negate the existence of original meaning. While interpretation may be complex and contested, it does not suggest the lack of a foundational understanding.

• He concludes that while legal interpretation can be challenging, the ongoing debate over meanings is essential for discerning the Constitution’s original intent.

Gordon's analysis highlights significant tensions between originalist and progressive interpretations of the Constitution. He demonstrates that, rather than abandoning the search for original meaning, it is vital to engage in these debates to uphold the Constitution’s foundational principles. 

https://mises.org/mises-wire/shifting-sands-constitutional-interpretation