Is it the Constitution or how it is Ignored?
Jill Lapore’s article is about the modern dilemma of the Constitution [How Originalism killed the Constitution, The Atlantic, October 2025]. The Constitution has collapsed as a form for a developing society because it has proved vulnerable to a takeover by an intention to control what has developed. We should conform to the ideology of Project 2025. My concern has been mainly about the State preemption of urban development but we have come a long way when speech critical of The Leader (Drill Baby) is preempted. All along it was a matter of ignoring the limits on top-down power in the Constitution.
The particular Plan for how we should be is less important than the collapse of the polycentric, deliberative democracy that maintained a variety under a Union, as our motto E Pluribus Unum prescribes.
The idea of a rule-form for a society has the power to sanction violations but is blind to what develops under the rules.
The deliberative democracy has been stifled by a follow-the-leader rigor made possible by a malapportioned majoritarianism controlled by money. The concentration of wealth among an elite—that believes in their supremacy—correlates with a concentration of the media. Once one ideological pole can control the FCC or the Supreme Court, it has the media by the buyout-balls.
The intensity and extent of our society inevitably produces a hierarchy of economic and political concentration. What can prevent that concentration from applying itself top-down to control the political base and the production-consumption process of wealth by ecological exploitation?
These posts originate in Limits to Mobility (LTM) that traced the growth of top-down projects imposed on our urban development. What started as redistribution of urban wealth to rural Good Roads became the ideological project to demolish urban development to give more capacity to automobile traffic where it did not fit. That is no more strange than Project 2025, but the urban-development preemption has been going on for over a century. It also defied any limits by the Constitution. How that happened is traced in more detail in LTM Part II.
Our current dilemma follows the pattern of polarization by a confused nexus of ideas dominating the economic-political power loop. In recent times money has entered the political process more directly and the broadcast media concentrate a spectacle of personality. We got a Leader able to seduce the TV cameras and control the money flow (to buy the media attention) sufficiently to suppress deliberation within a majoritarian party. We have practically a 50-50 split that becomes the dominance of one pole less and less attached to any social center. The third branch, the judiciary, being non-elective was co-opted by a longer campaign and that is what the Lepore article focuses on.
Justice vs. the Justices
Lapore’s article traces an ideological bent by the Supreme Court and the Justice Department. Lapore emphasizes a couple of issues (guns and abortion), a couple of judges (Bork not selected and Scalia who was) and a couple of dates: Bork’s articulation of originalism in 1971 (then advocated by Scalia) and the formation of the Federalist Society at Yale in 1982.
Lapore connects a lot of dots to argue that under Reagan the judicial component of our polarization—and so constitutional collapse—was solidified. My own view is that this unstable 50-50 fission traces at least back to the divisive War in Vietnam, now our clothing-making buds if the tariffs do not stifle that relationship. Think how many chips we could have gotten from a unified Korea. LTM paints an even larger canvas of constitutional erosion by an activist State giving half of us what we want (e.g., urban demolition for auto traffic). But let us stick to the judicial role since it is different from the Executive-Congressional dynamics of power, money and polarity. The judiciary can give us the rules to get what some want. But those rules inevitably favor the economically and politically powerful. Our 50-50 polarity just ends up being exploited by the 1% in our power hierarchy.
I am interested in Scalia because I lived in the same house in Cleveland Heights he once occupied. No, that is not much of a legal connection. I am interested in the Constitution for what it evidently attempts and what it fails to address. I invite anyone to disagree that the Constitution primarily limits top-down power on the development of our ecology. It also assigns some responsibilities uniquely fitted to a National State.
I draw the top-down limits at eminent-domain projects (EDP) that preempt the accountability of more local jurisdictions for their development [see my recent post on Polycentric Infrastructure]. I am interested in the responsibility for Regulation as risk management. That is Defense externally and for dosage-risk internally.
It is obvious to me that the top-down limits have been eroded and the ambiguous responsibility for regulation (as risk management, with equity) much confused. A post-colonial struggle on the other side of the Earth (e.g., Vietnam) gets our vital and expensive attention. But climate change? Meh.
My interests intersect Lapore’s on the question of how the Court might whack the Executive and Congress into constitutional line regarding development preemption (e.g., highway projects) and enforce risk-management responsibility. I could interpret the abortion and guns issue from that perspective, but those are not my primary examples. That leaves the Originalism thing.
To me the idea that any of the partisan judicial candidates or seat holders since the 1970’s can vouch for any original intent is ridiculous. In LTM Part II I do make something of decades of debate and decisions by the Founders who became President concerning projects as “internal improvements”. I note the vote in the Constitutional Convention (on Post Roads) that is a majority vote against any implication that transport projects are implied. I note that this leaves the several States as a level free to do as they please subject to Interstate Regulation (not construction projects). And that only shifts preemption of urban development—hence our social and economic development—to the several-State level. I am not going to be drawn here into the obvious debate of whether human rights should be universal across States, and so whether every city should have an Interstate Freeway through it. Or how regulation of the use of autos might relate to regulation of another deadly instrument. But I invite thought about that.
Originalism vs. Justice
The Constitution is the form for our national governance. It cannot fail to recognize the inevitable hierarchy of governance in a society of any complexity. It reacted to the autocracy just overthrown by limiting the top-down power. An aspect of the limits is precision in the definition of what may be done by such hierarchical power. Conversely there must be precision in what is reserved to other levels and individuals, primarily in the Amendments.
The tolerance for an Executive to do anything it can get away with is part of the failure. That failure comes from a polar collapse of all three branches, including the judiciary. That failure has everything to do with current political-economic connections: Appoint Me; Give Me and my wife a yacht ride! Who guards the guardians? The collapse of independence between the Executive and the Senate is sufficient to collapse the judiciary as well. Lapore does well to note that axis was not polarized so much before Reagan. Now it has less to do with any consistent judicial criteria than who the Boss wants because they endorse parts of His base.
That leaves the aspect of constitutional specificity. And that was crap to begin with, or “originally” I should say. I work mainly with what happened regarding highway projects that slithered from a Postal to a Commerce power: Regulate=freeways?? Should have stuck with “establish post roads” = “go out and build them”. Oh, but we have a vote against that in the Convention.
While I do not want to get into guns, the Second Amendment is a great example of ambiguity to be exploited as it was only in recent times as Lapore point out. Heck, I was even a NRA member in the 1960’s when they were still about target practice with single-shot 22’s. And so on to shooting M1’s in ROTC. It was about a skill, not blasting people of the other pole or defending yourself against the stranger knocking at the door. We have organized militias and police to prevent vigilantism. We lose the other pretty specific part: An organized militia allowed to each and every of the several States. Why? Because that is what the Red Coats tried to suppress at Lexington and Concord. It is ultimately a counter to top-down preemption. Of what? How about free speech by the other ideological pole? How about the local accountability of the police power? When Drill Baby can arbitrarily Federalize national guards to cities the Second Amendment is Dead. What does Originalism say about that?
Then there is Justice
The historical emergence of the governance hierarchy is a mixed bag of Church and State. And that is another ideological separation that has been eroded in our splitting Union. We want the Leader to be our Crusader!
The idea of a hierarchy is as metaphysical as the rule-form of a society that the People make immanent in their behavior toward each other. There is not enough room here for the anthropology discussion—that bears on our economic organization as well—but the Church or State has a responsibility to sanction the moral rules of a society and those are not made up by a recent faction in a Crusade.
LTM particularly cites Hayek and Rawls. Hayek made a distinction between Nomos and Thesis and Rawls wrote a popular fiction of how Nomos came to be. Hayek distinguished Nomos as the emergent rules, the common law, with a dose of moral/ethical precepts. Thesis is what the State makes up. “Thou shalt not steal” is Nomos. Eminent domain condemnation of your property for a highway is Thesis.
I adopt a social self-organization of Nomos. No one decided it. It is not intentional. Rawls’ fiction is that some original group decides what the rules are. It is A Theory of Justice in the sense that there is a “veil of uncertainty” between what each decider wants and what they may get in an infinite game under the original rules. So what is “just” is firstly equitable (same rules for all) and and agreeable to all as how they will live together. Kant tried a similar approach in his categorical imperative, of how to act.
Whatever. But we get a State with a judiciary that is there to decide what conforms with the law. Maybe that is Nomos, maybe Thesis. In practice Thesis is judged by whether it conforms to the Constitution (uh oh). For Nomos there is common law and so a judgment on whether any action, and its accountable outcomes, conforms with the law, and ages of prior decisions (stare decisis).
It is here that the idea of justice (whatever) starts to elide with Originalism. There is judicial discretion because “things change”. The circumstances and objects that interact change. “Thous shalt not kill” becomes prima facie liability if a car kills a pedestrian at a stop sign. And so forth. Originalism got left in time immemorial when the rules and sanctions started. The Nomos has validity because it lacks intent for specific outcomes and to satisfy anyone’s wants, other than to exist and have stuff to exist and produce with. That is also where the Constitution crossed over regarding reserved “rights”.
Lapore’s point is rather more pointed: That amending the rules, the Constitution, was originally permitted. So why can we not clean up the mess of the collapse of the Constitution into a polarized polity that some party can take control of with a slight and malapportioned majority? But then we just loop around: What rules should we preserve? How can our muddled and polarized polity decide what it wants and is that a valid rule form in any case? Rawls assumed the conditions for just such an attempt. And that also gets into just how any group would make a decision. If that is impossible (check Arrow’s ideas on social preference ordering) then Originalism is also at issue. There may be rules to live by but when there is any discretion in situations that have now changed for over two centuries it is just contradictory to say (as Scalia did) that the Constitution is Dead in terms of content. He was implying that any interpretation was the valid. And regardless, Justice persists. But that is not what an Autocrat wants.
Discretion is for wants, not Rules
The principle of discretion cannot be denied. Rules as formal cause [see LTM Part I or Aristotle] cannot determine our actions and our wants that are discretionary insofar as they face different situations all the time. The Congress has discretion in making Thesis. The Executive has discretion in dealing with inter-national situations or anything that rises to a national threat. The discretion on executing Thesis should be less than Drill Baby (or Tariff Man) claims because that is a matter of separation of powers of discretion. The discretion on making research agree with intent is just backwards and sign of Autocracy.
The judiciary has waffled over its history between substituting its opinions for legislative/executive authority and restricting itself to determining whether the other branches are within the rules and boundaries around their discretion. The limits to applying top-down power on our discretion and development must be part of judicial determination, as much as keeping the branches separated.
I do not place much hope on accountability of the State (Federal or several) to majoritarian vote: Especially when our own polarization can be exploited to create a target for exceeding the constitutional rules. The problem is the same as for rules: A mixing of many preferences into a binary vote is as unspecific as the rules and that is what gives the top-down discretion that must be limited constitutionally.
It’s about Autocracy, Stupid
The current problem is not legal scholars, or just seat-seekers, propounding some contradictory theory like Originalism. It is that it is possible for any ideological coalition to collapse the separations of discretion with the effect of concentrating it all in an Autocrat.
The electoral process splits us, the People, into polarities. The unspecificity of who we select makes it easy to split us into binary poles who place all wants in the most demagogic Leader. But for that to work in our Federal institution it is necessary to have all three branches in lockstep. And for the Congress and Supreme Court (or any Federal multi-member bench) that only requires the unstable 50-50 split (plus or minus some random or erratic vote). What vote did it take to pass the Big Beautiful budget fiasco? Oh, that guy from Yale.
The Trump-eting (sic) of litmus-test (i.e., 50-50 binary) issues like guns and abortion is just part of the strategy of polarization. There is every indication that if these issues were truly subject to referendum, they would not go the way used by the lockstep Ex-Cong-Court to keep its base. That base is itself a mix of inconsistencies: Do the fanatics for Life really not cry for gun victims? There is just a mix of incompatible and intrusive wants looking for a Leader to overcome the 50%, 60%, 70% (?) opposition of their fellow citizens. The greatest inconsistency of all is to call this manipulation Conservative or Originalist. It is a violation of the more perfect Union, and if that was not original intent what is?
The Supreme Court is where the difference between rules and wants, between separated discretions with genuine deliberation, stands or falls. It is where the discretion of an Autocrat can be challenged, or not. It has nothing to do with theories. It has everything to do with compliance of people who know where to seek their seats (I leave that metaphor dangling). When the game is to get power, the want is to eliminate any limits to power. That collapses the Constitution and is a really bad qualification for Supreme Court justices.