John Malcolm on The Heritage Foundation's Guide to the Constitution

The Heritage Guide to the Constitution

• 📚 John Malcolm discusses the new edition of "The Guide to the Constitution" from The Heritage Foundation, a 900-page volume with 213 essays covering every clause of the document.
• 💡 The book aims to assist originalist scholars and judges in researching constitutional questions and educate the public on the original meaning of constitutional clauses.
• 🏛️ It includes a preface by Justice Alito and a forward by former Attorney General Ed Meese, detailing historical context from the time of the Constitution's drafting to its early interpretations.

Understanding Originalism

• 📜 Originalism is defined as discerning the meaning of the Constitution's words and phrases at the time each provision was ratified.
• ⚖️ Malcolm notes that originalism is not solely a conservative approach, with many Supreme Court justices, including Ketanji Brown Jackson, professing to be guided by it.
• 🗣️ He emphasizes that any lawyer arguing a constitutional case must begin with the text and its original meaning to have a strong case.

Originalism vs. Living Constitutionalism

• 🌳 Malcolm contrasts originalism with living constitutionalism, which views constitutional language as malleable and adaptable to current times.
• ✍️ Originalists, he argues, believe that changes to the Constitution should occur through the formal amendment process outlined in Article 5, not through judicial edicts.
• 🌐 While enduring principles can apply to modern circumstances (e.g., the First Amendment and the internet), the meaning of words cannot be changed simply because times have evolved.

Historical Context and Amendments

• 🚺 Malcolm acknowledges that the Constitution was written in a different era, where women couldn't vote and Black people were not fully recognized under the law.
• ⚖️ He points to amendments like the 19th (women's suffrage) and the 14th (Equal Protection Clause) as evidence of the Constitution's evolution and the expansion of rights.
• 🤝 The Constitution is described as a compromise among 13 states forming a unified nation, an experiment with a brilliant structure of separation of powers and checks and balances.

Judicial Interpretation and Amendments

• ❓ Regarding essays that discuss amendments, Malcolm states the book lays out the history and framers' intent without labeling interpretations as right or wrong.
• 🎯 He clarifies that the book is not a judicial guide like Project 2025, but rather provides information for judges on how to approach originalism.
• 🚫 The book does not dictate how judges should rule on specific issues or cases.

The Amendment Process Today

• ⏳ Malcolm notes that there have been no significant amendments in over 50 years, suggesting that the Supreme Court has de facto amended the Constitution through interpretation in areas like same-sex marriage and abortion.
• 🌍 He mentions the growing