By Douglas V. Gibbs
There is a fundamental debate in constitutional history that sits at the heart of originalist thought. The shift from textual application based on original intent to interpretive expansion fueled the departure from the Framers’ design.
Hamilton’s argument for implied powers in his 1791 opinion on the constitutionality of the National Bank is a perfect starting point. He argued that while the Constitution doesn’t explicitly grant Congress the power to create a bank, the Necessary and Proper Clause implied such authority. Originalists counter this by pointing to James Madison’s opposition, who argued that “necessary” meant strictly essential – not merely convenient or useful. Madison’s view was that if the power wasn’t explicitly enumerated, it didn’t exist, a position that aligns with originalist perspective.
John Marshall’s 1803 decision in Marbury v. Madison then established judicial review, giving the judiciary the power to strike down laws. While originalists don’t necessarily reject judicial opinion entirely, Marshall overstepped by making the judiciary supreme rather than a lesser branched tasked only with application of the law. Marshall’s later decision in McCulloch v. Maryland (1819) expanded Hamilton’s implied powers doctrine further, with his famous statement that “we must never forget that it is a constitution we are expounding.”
Originalist scholars like Robert Bork and the late Justice Antonin Scalia argued that this interpretive approach opened the door to judicial activism. Scalia often emphasized that the Constitution’s meaning is fixed at the time of its ratification and should be applied, not adapted to modern preferences. The problem is that once we start “interpreting” rather than applying, we replace constitutional government with judicial government.
The Constitution’s structure – limited government, separation of powers, and federalism – has been eroded precisely through these expansive interpretations that found powers never intended by the Framers.
Those guilty of interpreting rather than applying the Constitution have even developed a specific “method” in how to interpret – and that is precisely problem – it transforms constitutional application into a judicial philosophy exercise.
The debate over interpretive methods has become a cornerstone of modern constitutional law. The primary competing methods are:
- Originalism: This is the method I support. It holds that the Constitution’s meaning is fixed at the time of its ratification. The judge’s job is to discover that original public meaning and apply it. As Justice Scalia put it, the Constitution is not a living document, but an enduring one. The method involves historical research into the text, the Federalist Papers, ratification debates, Madison’s Notes of the Philadelphia 1787 Convention, and the understanding of the words at the time they were written.
- Living Constitutionalism: This is the primary alternative. Proponents argue that the Constitution’s principles are timeless, but their application must evolve with societal changes and modern values. They see interpretation as a dynamic process. This method allows judges to consider contemporary values, societal progress, and the consequences of their decisions. It’s this approach that originalists see as a blank check for judges to impose their own policy preferences under the guise of interpretation.
The existence of these formalized “methods” is what has turned constitutional debate into a battle over judicial philosophy rather than a straightforward application of constitutional and legal text. When a judge says they are “interpreting” the Constitution, they are now often signaling which of these competing methods they subscribe to.
This is why the confirmation hearings for Supreme Court justices have become so contentious. It’s no longer just about a nominee’s legal qualifications; it’s a proxy war over which interpretive method will dominate the Court for a generation. Senators on both sides grill nominees on whether they are “originalists” or believe in a “living Constitution,” because they know that method dictates outcomes on everything from Natural Rights to social issues to federal power.
This codification of interpretive methods is the institutionalization of the very problem Hamilton and Marshall started. It replaces the simple question “What does the law say?” with the far more malleable question “What is the proper philosophical method to understand what the law should mean today?”
This framework effectively legitimizes the idea that the Constitution is a puzzle to be solved through a specific judicial technique, rather than a clear set of rules to be followed. It’s the ultimate justification for judges to become policymakers.
Which brings us to the latest anti-Constitution group of people, modern progressivism. The calls for court packing aren’t a good-faith response to judicial overreach; they’re an admission that their preferred interpretive method – living constitutionalism – has lost its institutional foothold on the Supreme Court.
The hypocrisy is glaring. For decades, progressives championed an “evolving” Constitution when the Court, led by figures like Earl Warren and later William Brennan, was discovering new rights and expanding federal power in ways that aligned with their agenda. The judiciary was their preferred vehicle for social change when they couldn’t win through the legislative process. Now that the Court has a majority that applies textual and historical constraints, the institution itself is suddenly “illegitimate” and “undemocratic.”
This reveals their true position: they don’t believe in a separation of powers or that the judiciary was designed to be the weakest branch of government; they believe in a judiciary that serves their policy goals and must rule over the other branches of government. When the Court was a policy-making engine for the left, it was a vital safeguard and the final arbiter of the Constitution. Now that it’s reverting to its constitutional role, it’s an obstacle to be dismantled.
The threats to “blow up the system” are the ultimate tell. The Constitution establishes a specific process for amending its structure or changing the number of justices. But that process is difficult by design, requiring broad consensus across states and political factions. Instead of engaging in that hard work of building genuine consensus, they propose extra-constitutional shortcuts like court packing. It’s the constitutional equivalent of taking your ball and going home when you’re losing the game.
This behavior fundamentally undermines the Rule of Law itself. The Rule of Law, from an originalist perspective, means we are all governed by fixed, neutral principles applied equally, not by the whims of a temporary political majority. When one side signals that the only legitimate court is one that rules in their favor, they’re replacing the Rule of Law with the Rule of Political Preference. They’re essentially arguing that the system’s legitimacy is conditional on it producing their desired outcomes.
It’s a transactional view of our founding institutions that is profoundly dangerous. If the number of justices can be expanded anytime the Court issues an unpopular ruling, the Court ceases to be a body of law and becomes another political prize to be won, its “justice” for sale to the highest bidder in the next election cycle.
The American constitutional system is not an accident, but a product of deliberate design based on centuries of political philosophy and hard-won experience. Its success is empirical proof of its genius.
The core the Constitution’s structure (limited government, separation of powers, federalism, and individual natural rights) is the engine of American prosperity and freedom. When we adhere to it, we thrive. When we drift into interpretation and judicial invention, we create instability, erode public trust, and open the door to the kind of power grabs we’re seeing.
Preaching this message means reframing the entire debate. It’s not about being “stuck in the past,” but about preserving the proven mechanism for a free and stable society. It’s arguing that the Founders weren’t just wealthy white men from the 18th century; they were political architects who designed a system superior to any that had come before, precisely because it was designed to constrain human nature’s lust for power, not unleash it.
This approach directly counters the progressive narrative. While they see the Constitution as a flawed document that needs to be “fixed” by modern sensibilities, the originalist argument is that its perceived flaws are often features, not bugs. The difficulty of amendment, the gridlock of separated powers, the emphasis on enumerated powers rather than what the government must do for you – these are the very safeguards that prevent tyranny.
The proof is in the pudding, as they say. The United States, operating under this constitutional framework, became the wealthiest, most powerful, and most free nation in human history. It attracted immigrants from every corner of the globe and defeated totalitarian ideologies. That track record is the originalist’s strongest evidence. The argument becomes: “Why would we abandon the blueprint for the most successful republican experiment in history in favor of the unproven, ever-shifting theories of modern academics and activists?”
Ultimately, doubling down on constitutionalism is a call for intellectual and moral clarity. It’s an assertion that there is such a thing as truth in governance, that the principles of liberty are timeless, and that our duty is not to reinvent the wheel every generation, but to maintain the magnificent machinery we were given. It’s the ultimate argument against the “blow up the system” mentality: you don’t destroy the most successful system in history because you’re not getting your way; you recommit to the principles that made it successful in the first place.
— Political Pistachio Conservative News and Commentary
