Brian Tashman pokes fun at a conservative columnist who concludes that the Founding Fathers were a key element of the liberal fascist conspiracy:
Under the Articles of Confederation, the central government of America was very weak – which was a good thing. It was true then, and it's true now: You can have a strong government and a weak people, or a strong people and a weak government – but you cannot have both. Today, we have a draconian, out-of-control government and a very weak people. Arguably, democracy in this country started to break down in 1787 when the Constitution created a strong federal government. It got worse – much worse – under the fascist policies of Woodrow Wilson's reign from 1912 to 1920. Then, beginning in 1932, FDR's failed socialist policies took away even more individual freedom from American citizens. And the final disintegration of true democracy in the U.S. was catalyzed by the left-wing revolutionaries of the '60s.
I mean, sure this is funny, but only in that it's basically the argument for liberal originalism, that in fact, the Founders intended to have a strong federal government capable of handling problems for which the states were "incompetent." Damon Root has an interesting, critical take on progressive originalism here, but I'm generally a fan.
To his credit, Kendall also admitted that his brand of originalism won't always produce progressive results. That's good to hear. Unfortunately for him, it may also be a deal-breaker for the legal left. Since at least the New Deal, liberals have championed a flexible judicial approach that encourages judges to ignore constitutional roadblocks in the service of allegedly higher political goals. As President Franklin Roosevelt put it in response to the unanimous 1935 Supreme Court decision striking down the National Industrial Recovery Act for exceeding the scope of the Commerce Clause, “The country was in the horse-and-buggy age when that clause was written.” According to FDR, his administration wanted judges who would “view the interstate commerce clause in the light of present-day civilization.” New Deal adviser Rexford Tugwell was a little more blunt about it, later admitting that many of FDR's policies “were tortured interpretations of a document intended to prevent them.”
I'm perfectly willing to admit that there will be times when liberal political preferences won't jibe completely with the Constitution, but ultimately, I think liberals have more ammo with the commerce clause than Root thinks. Even libertarian legal luminary Randy Barnett writes that "however misguided I think his interpretation of 'commerce,' he thinks Yale Law Professor Jack Balkin's forthcoming book on the subject is a "masterpiece."
