The Right Coast

Editor: Thomas A. Smith
University of San Diego
School of Law

Thursday, November 8, 2018

Political Originalism and the Problem of Power

Trump’s forthcoming executive order is a compelling reminder of two facts. One is that “power is of an encroaching nature.” By taking on the constitutional text, the president has notched matters up, though no more than those who once said with straight faces that the Fourteenth Amendment could be used to raise the debt ceiling. As Bertrand de Jouvenel reminds us, it is in the nature of power to augment itself, so it is no surprise that President Trump would invoke and arguably expand the authorities his predecessor asserted.

The second fact is the key one: fidelity to the original meaning of the Constitution cannot be outsourced to the courts while the political branches test the extreme boundaries of their powers. What Edmund Burke wrote of the revolutionary French Assembly has become true of the presidency, and often of Congress, under both parties: “Their idea of their powers is always taken at the utmost stretch of legislative competency, and their examples for common cases, from the exceptions of the most urgent necessity.”

What we need instead is a political originalism that recognizes the authority of all three branches of government to interpret the Constitution but also their concomitant responsibility both to accept and to follow a constitutionally proper understanding of their own authority. Regarding originalism as a theory of judicial method alone misses its power and, crucially, its meaning. It would be anti-originalist to shove originalism to one side—the judicial side—while the other branches roam free in an effort to see what they can get away with.


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