President Trump’s second term in office has been marred by activist judges placing injunctions, and partial or full blocks on his agenda. As tiring and counter-productive as their campaign against the will of the American people has been, judicial activism has been a problem for far longer than anyone alive can remember.
The 1857 Dred Scott case not only denied African Americans citizenship, it also struck down a law passed by Congress called the Missouri Compromise. The majority opinion of the court, at that time, used racial assumptions to read into the Constitution that which was not in the text. This judicial overreach inflamed sectional tensions and hastened the American Civil War.
Original intent, of our Constitution and the subsequent laws passed by Congress, is vital to maintaining peace and stability in our nation. Had our judiciary maintained the original intent of the Constitution in all of its opinions, our nation could have avoided much social turbulence, civil unrest, and bloodshed. Judicial discretion untethered from the original meaning has enabled vast expansions of federal power, which has distorted the constitutional structure of enumerated and limited government. The courts’ departures from text and original understanding have led to the manufacture of new rights while diminishing enumerated ones. Finally, judicial policymaking has eroded democratic legitimacy, because judges have usurped a power reserved for our democratic process, instead of keeping it in the hands of our legislature where it constitutionally belongs.
Given the severe damage judicial activists have caused throughout our nation’s history and its current tiresome antics that seem to be thrusting America towards civil war, it is time to put judicial activism to rest via a constitutional amendment requiring Originalism as an interpretive standard.
Originalism constrains judicial activism by tethering interpretation to fixed, democratically ratified text. It honors the sovereignty of the people and the states as the original authors of the Constitution, and it ensures stability and predictability in law, preventing governance by judicial fiat.
The key principles of Originalist interpretation are: textual fidelity, historical context, structural logic, prohibition of evolving standards, and the restoration of Natural Law.
Textual fidelity mandates that the words of the document must be understood as they were publicly meant at the time of ratification, not redefined by modern sensibilities. This principle will restraint jurists from imposing their biased personal opinions upon the nation to the detriment of many if not all citizens.
Historical context requires jurists to discern how the text, and only the text, of a document would have been understood by a reasonable, well-informed person at the time of its adoption. For example, in interpreting the US Constitution, jurists would have to discern the framer’s intent through contemporary debates (e.g., Madison’s notes), dictionaries (e.g., Webster’s 1828), and writings (e.g., Federalist and Anti-Federalist Papers, correspondence, state ratification debates). This principle would keep jurists rooted in the facts and mandate them to apply the principles and intentions of law statutes to modern circumstances.
Structural Logic mandates that the Constitution’s architecture—separation of powers, federalism, enumerated powers—must be respected as a coherent system of limited government. No longer would jurists be able to pass a majority opinion that expands the federal governments powers past those enumerated in Article I, Section 8 of the US Constitution.
Prohibition of evolving standards circumscribes jurists’ ability to make opinions that exceed the standards set by the original text. For too long, jurists have undermined the people’s authority by bypassing the formal amendment process (Article V) and interpreting words and phrases outside of their original context.
Finally, the restoration of Natural Law would return our nation to the bedrock foundation of the Declaration of Independence’s self-evident truths and natural rights (e.g., life, liberty, property), which inform the Constitution’s protections.
Originalism not only limits judicial discretion, it also forces lawmakers to be clearer, and create greater consistency in constitutional opinions. The judiciary’s history demonstrates that when judges depart from textual and original meaning, they expand federal power, invent or deny rights, and inflame political divisions. A Judicial Accountability and Democratic Fidelity Amendment would restore constitutional boundaries, ensure democratic legitimacy, and provide the predictability needed for stable self-government. Just as prior amendments have corrected judicial excess, this amendment would permanently anchor the judiciary in the interpretive methods most consistent with the Constitution’s design.
[Post and Amendment written with the assistance of AI]