Editor’s Note: Derek W. Black is a professor of law, and chair in constitutional law at the University of South Carolina. He is the author of “Schoolhouse Burning: Public Education and the Assault on American Democracy.” Follow him on Twitter at @DerekWBlack. The opinions expressed in this commentary are his. Read more opinion articles on CNN.
Many Republicans speak of originalism as though it were a commandment written into the text of the Constitution. They speak reverently of strict obedience to the plain meaning of the Constitution at the time it was written, and to its framers’ original intent. But their brand of originalism more closely resembles a tool they use to achieve whatever their current policy goals are.
Democrats, in contrast, often recoil at originalism as if it were a dirty word. But originalism – properly understood and applied – can be just as friendly to Democrats as Republicans. Both parties’ misunderstandings do the principle a disservice in a way that may threaten our democracy’s future.
The most fundamental aspect of our original constitutional system is the restraint of power. Presidential restraint. Congressional restraint. Judicial restraint.
The Constitution grants the president few explicit powers. The president commands the armed forces, appoints officials and judges and can veto legislation – if Congress does not override the veto. Beyond that, the president’s job is limited to taking “Care that the laws be faithfully executed.”
The president does not set taxes or the federal budget, declare wars, pass bills or run elections – and for good reason. America suffered under the tyranny of a king and did not want a president to repeat those transgressions.
Today’s Senate, however, shows too little concern for this founding fear. It sought to usurp President Barack Obama’s power to appoint officers and judges but now winks at President Donald Trump as he leaps and bounds over his constitutional powers.
This Senate refused to check President Trump when he withheld foreign aid that Congress mandated for immediate release. It did the same when the President took money appropriated for the military and spent it on a border wall instead. It has also stood by as the Trump administration violated the law by rescinding regulations, enacting unauthorized new ones and ignoring others.
A Trump-appointed judge was recently compelled by logic and the law to write – of a Trump administration regulation that involved a dramatic reimagining of the rules for sharing resources with private schools under the CARES Act – that the law “cannot mean the opposite of what it says.”
Transgressions like these, which are many, make it impossible to take seriously the idea that the President or Senate really cares about originalism. Trump’s only consistent commitment seems to be the exercise of power and prerogative. And the Senate seems far more committed to empowering the President than restraining him.
The Senate has torn at the very norms that once allowed it to resist presidential excesses and the passions of the House of Representatives. The Senate once set itself apart by moving at a snail’s pace to find solutions and consensus, not rushing through slim, perpetually partisan majorities.
But under Majority Leader Mitch McConnell, the Kentucky Republican, the Senate has stripped away deliberative procedures when “necessary” to suit the President or Senate leadership. Remember, for instance, when it hurriedly rewrote the entire tax code in 2017, didn’t release the final bill until immediately before the vote, ignored cost overruns that could not be fully estimated until after the vote, and pushed through a party-line vote.
Remember the seven federal judges whom the American Bar Association rated as “not qualified” – an automatic death knell in the past – but the Senate confirmed anyway.
The Senate has managed feats like these by doing things in weeks that normally take months. And it is doing it again with Judge Amy Coney Barrett’s nomination to fill the Supreme Court seat left open by the death of Justice Ruth Bader Ginsburg.
Barrett’s nomination is even more troubling when measured against what this Senate could not find time to do over the past few months. It could not find time to tend to one of the nation’s deepest commitments: to its schools and schoolchildren.
This fall, when the pandemic was jeopardizing the ability of schools in every state to reopen, pay teachers and educate children, the Senate refused to act. And now, when 56 million students are still trying to stay in school safely or learn remotely – and the effects are felt by nearly every workplace, community, county and state – this Senate dropped everything to rush through the nomination of a single judge.
The Northwest Ordinance of 1785 is at the front of every bound copy of the United States Code alongside the nation’s three other “organic laws” – the Declaration of Independence, the Articles of Confederation and the Constitution. The Ordinance was the land deal between the states and the federal government that made the Constitution possible.
It specified how the territory outside the colonies should function – and placed public education at the literal center of those future states. It required every single town to reserve a center lot for schools and a substantial chunk of the outlying land to support those schools. “Being necessary to good government and the happiness of mankind,” it said, “schools and the means of education shall forever be encouraged.”
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As I detail in “Schoolhouse Burning: Public Education and the Assault on American Democracy,” Congress doubled down on this commitment after the Civil War, forcing states to guarantee public education in their state constitutions. Congress reasoned that doing so was part of the Constitution’s requirement that “every State in this Union” guarantee “a Republican Form of Government.”
If there were ever a need to return to such a government, and to reject disordered priorities and a warped sense of constitutional powers, it is now. Future historians will be hard-pressed to find that originalism or constitutional democracy had anything to do with the current era.
Restraint has kept the nation together for two and half centuries. The lack of it today is ripping it apart. May a few leaders find the courage to summon it this week and may those elected in November do the same – jealously guarding their independent constitutional roles regardless of who sits in the White House, prioritizing fundamental national commitments over the consolidation of power, and bravely filtering their positions through the eyes of history.
