In his review essay titled “Law on Shifting Sand,” David Gordon exposes a “pernicious” claim, advanced under “false pretenses,” that the case law promulgated by the United States Supreme Court represents the true meaning of the Constitution. Gordon calls this claim “pernicious” because, while it purports to be simply admiring the common law method in the way that libertarians like Friedrich Hayek and Bruno Leoni did, in fact such claims “cloak their statism in common-law language.” They endorse radical judicial activism by rejecting entirely the possibility that “the Constitution has a discernible original meaning that the Supreme Court has distorted.” They deny that anyone could ascertain the meaning of the Constitution by reading the Constitution—they argue that the Constitution means what the Supreme Court says it means, even in cases where the Supreme Court subverts the original meaning of the Constitution in order to advance progressive values.
According to these pernicious progressives, the Supreme Court does not distort the Constitution at all, but simply interprets it on a case-by-case basis. If Supreme Court case law seems to create novel legal principles that are not to be found upon reading the Constitution itself, the pernicious progressives see this as simply illustrative of pragmatic Supreme Court interpretation, without any intention or design to create new legal principles. However, as Gordon explains: “Their defense of common sense and pragmatism is not what it seems. They exalt into an unchallengeable absolute the current jurisprudence of the Supreme Court.” Even the most “radical” and “arbitrary” Supreme Court decisions are deemed to be merely common law interpretation. Gordon is right to point out that such radical judicial activism is not the common law method:
…the controversial decisions of the modern Supreme Court do not follow English common law practice. The court often enacts its own views into law, by “discovering” broad meanings of various provisions of the Constitution…. The Supreme Court…often enacts, in slapdash fashion, its own social views into law, with little pretense of attention to the words of the constitution.
This author is.stating that there are differences in interpretation of laws and that there is a fabulous interpretation and an originalist interpretation. The law is written as the law is written and understood at the time the law was written is the originalist interpretation while the law as written can be interpreted as people of the time of interpretation deem the correct way is the progressives interpretation of laws. It is a conundrum, however, how can someone be so flexible with the law that a written law can mean exactly opposite of what the words say?