Understanding what the framers meant it to say

RICHMOND, Va. — Twenty-five years ago this past summer, then-Attorney General Edwin Meese III stood before the annual meeting of the American Bar Association and displayed the temerity to call for the nation and its courts to abandon their errant juridical ways and return to what he called "a jurisprudence of original intention."

Since that moment the advocates of liberal judicial activism have dedicated themselves to discrediting the idea of what has come to be called "originalism," inevitably portraying it, in the words of one scholar, as an "inadequate and dying methodology."

Barack Obama is the most recent antagonist to emerge and take a stand against originalism. Rather than select judges who understand themselves to be bound by the text of the Constitution and the intentions of its framers, the president prefers those willing to keep the Constitution in tune with the times by elevating their own personal sentiments about social justice to the level of constitutional law. The search for "empathy" was to be his standard for his judicial picks his first two years; there is no reason to suspect he will abandon that in the last two years of this term.

Like many of its critics, the president fails to understand that originalism is not simply one method of interpretation among many equals; rather, it is the only one with a moral foundation that derives from the very essence of the American constitutional order. The Lockean philosophy of natural rights upon which the entire constitutional edifice rests demands it. The reason is that arbitrariness in the administration of power — including what Justice Joseph Story condemned as the "arbitrary discretion of the judges" — is the greatest threat to the rule of law.

Being subjected to "the inconstant, uncertain, unknown, arbitrary will of another man," John Locke had taught, is the very essence of tyranny. By the mechanics of the social contract the free, equal and independent people in the state of nature were reduced by their own voluntary and positive agreement to "one body politick under one supreme government."

But that government had to be above all else a "lawful government," one in which the "ruling power" would itself be bound by "declared and received laws" and would not govern by mere "extemporary dictates and undetermined resolutions." Such dictates could only be the "exorbitant and unlimited" opinions of the governors based upon nothing more certain than their own personal "sudden thoughts, or unrestrained, and till that moment unknown wills."