Cass Sunstein, a Harvard law professor and intellectual heavyweight on the left has perfectly encapsulated the cavernous divide between the battle of ideas and the fight for the soul of the American judiciary.
In a recent article, Sunstein claims to accurately represent originalist Constitutional thought and goes so far as to list specific policy provisions he purports to exclaim Originalism can “easily lead to.” The list includes: banning the sale of contraceptives, federal and state racial discrimination, state establishment of religion, and the invalidation of the Endangered Species Act and Clean Water Act.
By making these claims, the venerable professor unleashes a hyperbolic verbal diarrhea usually reserved for BLM protestors and Occupy Wall-Streeters. A cursory understanding of originalist judicial philosophy betrays Sunstein’s entire fear-mongering diatribe, and for his students’ benefit, I’d like this mere ASU law student to lay out the basic case for a constitution of liberty:
The Founders, inspired by the classical liberal political economic philosophies of Locke, Hume, and Montesquieu, coupled with their own contemporary intellectual giants, like Adam Smith, sought out to create a federal constitution of limited, enumerated powers granted to the federal government, all while reserving the natural rights of citizens. This natural rights approach is perfectly illustrated in the Declaration of Independence’s proclamation that “government is instituted among men, deriving their just powers from the consent of the governed.” Far from being a mere democratic proclamation, Jefferson’s “just powers” statement reflected that government should not exceed any authority not afforded to it by individuals who form a social contract from the state of nature. Put simply, if an individual does not posses a given authority on his own, he is unable to grant that authority to the government. Government exists to protect rights that an individual possesses through his or her existence, namely, the right to life, liberty and property. “Positive rights” (like the right to healthcare) to the classical liberal, are not rights at all, but an abuse of power granted to government by individuals who do not possess a redistributive authority before entering into the social contract.
This brings us to constitutional originalism:
The originalist sees the constitution as a structured document meant to protect individual “natural” liberty from a democratic governmental entity. The enumeration of powers in Art 1 Sec 8, coupled with the federalist 10th amendment creates a firewall against government overreach into our lives. The civil war amendments to the Constitution correctly applied this natural rights approach to the states and were meant to preclude government intrusion into our commerce, civic participation and private undertakings at a more local level.
Originalism is NOT a judicial philosophy that wants to bring us back to the 18th century. In framing originalism in this way, Sunstein is either extremely intellectually lazy or intellectually malevolent. If it’s the former, perhaps it’s time for him to retire and enjoy less-rigorous pursuits. If it’s the latter, it’s perhaps prudent for Harvard Law School should reconsider his employment at such a revered institution.
To the left, intellectualism has become an excuse to promote certain ideology by any means necessary. From Paul Krugman to Cass Sunstein, demagoguery replaces serious discussion and fear-mongering hyperbole supersedes dialogue. Professor Sunstein’s views are vapid and off-base, and the longer he argues in this manner, the easier it will be for those professing a constitution of liberty to ultimately win the battle of ideas.