Somin: How Constitutional Originalism Promotes Liberty
In an opinion piece in the Library of Law and Liberty, Professor Ilya Somin argues that an originalist approach to constitutional interpretation best protects the value of liberty.
In general, originalism is only likely to promote liberty if the original meaning of the constitution in question protects that value more than the realistically feasible alternatives such as living constitutionalism or deference to the political process. While these conditions do not hold for all constitutions, they do apply to ours.
Start with the original 1787 Constitution. Although it was intended to establish a stronger federal government than existed under the Articles of Confederation, it still imposes tight limits on the scope of federal power. Today, the lion’s share of federal legislation is supposedly authorized by either the Commerce Clause, which gives Congress the power to regulate “Commerce . . . among the several States” or the Spending Clause, which establishes the power to spend money to promote the “general Welfare.”
The original meaning of both is far narrower than modern interpretations. Despite valiant efforts to prove otherwise, the text of the Commerce Clause does not give Congress the power to do more than regulate trade in goods and services across state boundaries and the instrumentalities by which that trade is conducted. It certainly does not give Congress the power to regulate any activity that might have a significant effect on such trade, or on the national economy. As Justice Clarence Thomas and others have pointed out, the modern “effects test” interpretation would make much of the rest of the Constitution superfluous. The Commerce Clause itself also gives Congress the power to regulate trade with foreign nations and with the Indian tribes (which was a much more important part of the economy in 1787 than today). Both of these types of trade clearly have major effects on the economy and on interstate commerce, yet the Founders thought it necessary to grant the power to regulate these types of trade separately.
How Constitutional Originalism Promotes Liberty, Library of Law and Liberty, June 1, 2015. By Ilya Somin.