This article was published by The McAlvany Intelligence Advisor on Wednesday, June 5, 2019: 

Steven Calabresi carefully defined the difference between “originalism” and “living constitutionalism.” A law professor at Northwestern University’s Pritzker School of Law, Calabresi wrote:

Originalism is a theory of the interpretation of legal texts, including the text of the Constitution. Originalists believe that the text ought to be given the original public meaning that it would have had at the time that it became law….


Living constitutionalists believe that the meaning of the text changes over time, as social attitudes change, even without the adoption of a formal constitutional amendment.

Candidate Trump promised to nominate only “originalists” to fill judicial vacancies, and he has kept, and is keeping, his promise. One of them, Trevor McFadden, now sits on the bench of the District Court for the District of Columbia and gave a lesson on “originalist” thinking in a recent case:

Few ideas are more central to the American political tradition than the doctrine of separation of powers. Our Founders emerged from the Revolution determined to establish a government incapable of repeating the tyranny from which the Thirteen Colonies escaped.


They did so by splitting power across three branches of the federal government and by providing each the tools required to preserve control over its functions. The “great security against a gradual concentration of the several powers in the same department,” James Madison explained, “consists in giving to those who administer each department the necessary means and personal motives to resist encroachments of the others.” The Federalist No. 51.

The case – U.S. House of Representatives v. Steven Mnuchin – resulted from a brought by House Democrats against the Trump administration over the building of the president’s “beautiful wall.” Since he could not get Democrats to give him the $8 billion he wanted, he announced in March that he would move other funds designated for other purposes to build it anyway. He would take $3.6 billion from other military construction projects, $2.5 billion from other defense programs, and $600 million collected in enforcement and forfeiture actions by customs and treasury agencies and shift them to building a border wall on the US-Mexico border near Yuma and El Paso.

In April, House Democrats filed suit. In May, McFadden heard arguments from both sides, and on Monday he made his ruling. Rather than defend Trump’s actions, the administration’s attorneys claimed that the House had no standing – i.e., proof of injury – to bring the suit. McFadden agreed with them and provided an additional lesson in originalist thinking for his conclusion:

The “complete independence” of the Judiciary is “peculiarly essential” under our structure, and this independence requires that the courts “take no active resolution whatever” in political fights between the other branches. See The Federalist No. 78 (Alexander Hamilton).


And while the Constitution bestows upon Members of the House many powers, it does not grant them standing to hale the Executive Branch into court claiming a dilution of Congress’s legislative authority. The Court therefore lacks jurisdiction to hear the House’s claims and will deny its motion.

Speaker of the House is likely to file an appeal.

In the meantime, Trump’s plans to build the wall remain at a standstill, thanks to another ruling, this one from an -era appointee, Haywood Gilliam. He ruled against the Trump administration and blocked projects already slated for immediate construction, holding that Trump’s shifting of funds violates the doctrine so eloquently expounded and defended by Judge McFadden.

How this all sorts out only time will tell. But isn’t it comforting to know that the Constitution of the United States, after all these years and after all the attempts to override it, abrogate it, or ignore it altogether, is increasingly relevant?




Background on Professor Calabresi

CNNJudge rejects House Democrats’ attempt to block border wall

New York PostJudge slaps down suit by Dems over Trump wall funding plan

Fox NewsJudge tosses House Dems’ lawsuit over Trump’s use of emergency military funds for border wall

Washington PostJudge rejects House suit to block transfer of billions of dollars for Trump border wall


New York PostPentagon authorizes $1B for Trump’s border wall

The JournalJudge Voices Caution on House Border Wall Lawsuit

Background on Judge Trevor McFadden

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