In an age when judges are habituated to invent rather than apply the law, a written Constitution is a thing of irony. We’ve become exactly what constitutions are designed to prevent: a nation not of laws but of men—er, sorry, of people. And not of just any people: We’ve become a nation of lawyers, a juristocracy in which courts first impose, say, gay marriage despite its total want of constitutional mooring, then re-impose it when 37 million Californians have the temerity to buck their robed betters in a referendum—with the law profs tut-tutting that such “fundamental” matters are beyond the competence of the rabble.
The living constitution is, in McDowell’s refutation, a Frankenstein monster created in the laboratories of Progressive-era law schools.
To show just how wayward the place we have landed, how removed from our trailblazing commitment to popular sovereignty, is the burden of Gary L. McDowell’s powerful new book, The Language of Law and the Foundations of American Constitutionalism Professor McDowell, a prolific author and an instructor on the intersection of law and political science at the University of Richmond, was a top speechwriter at the Reagan Justice Department. Those were the days when Attorney General Edwin Meese III famously forged the case for originalism, the interpretive philosophy which construes constitutional provisions in accordance with what they were understood to mean at the time of their adoption. Thanks to a generation of scholars raised on Meese’s speeches and the jurisprudence of Robert Bork and Antonin
