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'Originalism' isn't what you think it is

2020-10-21 00:00:00.0 美国有线电视-国会原网页

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.

(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.

Mitch McConnell's disturbing chuckle

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 r ewrote 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.

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