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Scalia's most famous idea is more important now than it ever was

If Justice Scalia’s legacy has contributed anything philosophically to the world of Constitutional Law, it is his unwavering commitment to textualism, Originalism, and the idea that words actually have meaning. Our Constitution says what it means and the Founders mean what they said.

Most of the blogs and articles from conservatives in the past few weeks have generally praised Scalia for his profound commitment to Originalism, but few have actually articulated what this means and how this meaning is applied to our system of American government.

Originalism cannot be fully understood in a vacuum and certainly not separated from its core philosophical tenants: belief in self-government, belief in liberty, belief in freedom, and belief that the Constitution is a legal document that has one fixed and understood meaning.

American government was founded on these philosophical tenants and central to preserve and protect liberty, as Madison expressed in the Federalist Papers, is a republican form of government—the political philosophy that the citizens can and should affect both state and federal government. Self-government is not a bureaucracy or tyranny.

Originalists believe, as the basic premise, that the Founders had one specific intent and legal meaning in the written text of the Constitution, and such plain meaning can necessarily be understood and applied, even 225 years later.

What has become an unnecessary faction among liberty-minded Americans is the dispute over Article V from the perspective of Originalism. One of the objections voiced frequently stems from an over-simplified grasp of Originalism and a misapplication of this shallow understanding to Article V.

Article V, according to an Originalist view, is the legal mechanism whereby citizens in a self-governing republic can change the structure and balance of powers in the federal government in order to continue to preserve and protect liberty and the philosophical tenants of conservatism.

A Convention of States does not by any means advocate for a fluid Constitution. If we believed that, we would consider Article V unnecessary—the liberals have taken that path through judicial activism on the Supreme Court and in federal courts. Rather, Originalism recognizes that Article V specifically means that the Founders put in place in our constitutional republican form of government that there may be times in our history where the federal government would not regulate itself, and the citizens of the several states must be able to achieve regulatory power on the government that in turn governs them.

This is essential to self-government and principles of liberty. As Madison wrote in Federalist 10,

“In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government. And according to the degree of pleasure and pride we feel in being republicans, ought to be our zeal in cherishing the spirit and supporting the character of Federalists.”

An Article V Convention of States is precisely this republican remedy. (By “republican,” I do not mean partisanship, but rather appealing to the constitutional republican form of government imposed by the Founders through our U.S. Constitution.)

Article V provides specific, limited, and difficult power to the states to be an additional check on federal overreach. Originalism teaches us to read the Constitution plainly and in legal terms. One of the most significant errors in reading Article V is to presume either that the Constitution is a fluid document with no specific and tangible meaning, or, that utilizing the functionality provided for in Article V would be in any way unfaithful to Originalism.

Originalism is exactly how we reach a Convention of States. It baffles me that I read so many political blogs that express outrage that the “everyday man” cannot curb the federal government, and then that same person dismisses a Convention of States as antithetical to their values or unconstitutional. How can a provision specifically set forth in detail in the Constitution be unconstitutional?

Our Founders specifically provided this as the way for the everyday man and the states to be that check on the federal government. Once we, the everyday man in the several states, take back our sovereignty in the way the Constitution originally preserved, we can then build upon that state power of self-government and truly effect real, tangible change.

Scalia recognized Article V as the legal option provided for in the Constitution. The most prominent textualist himself recognized and supported a Convention of States and I urge you to begin to understand in more depth what it means to truly be a constitutional republic and apply our values to Article V.

We must preserve liberty and self-government.


Jenna Ellis, Esq., is an author, attorney, and professor of law at Colorado Christian University. She also serves as the Legislative Liaison for the Colorado Convention of States Project.