The debate over federalism and originalism was initiated not long ago, with the country’s existence crossing the verge of two centuries and firmly moving forward on the way of its development and prosperity. The essence of the debates was found in the development and evolution of the structure of the US government as well as the evolution of the judiciary branch that was necessitated by too broad a formulation of the US Constitution, as many suppose. Thus, in the process of discussing the matter, it is important to have a look at the ideas of outstanding socialists, thinkers, and politicians of all times who speculated over the topic of the role of the state and government in the lives of their citizens and the proper means of an arrangement of the state to fit the needs of both.
The first figure coming to mind in the discussion of the state is John Locke who produced a great number of works dedicated to the topic of social arrangement forms, the ways people existed and correlated before society was shaped by the state rules, and what changed with the introduction of the state as an organization form. Locke states that people cannot exist without control, which has truly been proven by anarchy cases that brought about only dissolution and destruction. In addition, he states that a Constitution is nothing more than a contract with the stipulation of rights and responsibilities of both the government and the population of the country that provides safety and protection for citizens as well as provision of their liberties.
Support for the idea of the overall usefulness of the government for the people can be also found in the work of Madison titled “The Utility of the Union as a Safeguard Against Domestic Factions and Insurrections” that supported the idea of creating the USA as an autonomous state with the whole set of opportunities and advantages as a particular kind of a social organization form. The matter is that the article by Madison was written in the period of the formation of the state, so it justified the people’s choice and explained why being a country is better than being a set of states, which was explicitly proved in the process of the USA existence. Proving the idea of federalism, these two authors indicate the necessity of strict social organization that limits human behavior and restrains their incentives, but at the same time gives them additional liberties, rights, and security, which has become increasingly important in the flow of time.
This statement of Locke can be surely witnessed in the US Constitution enumerating its purposes and goals for the provision of freedom, safety, military defense, prosperity, and development of the US nation. However, one should also think about the modern government and its structure.
Outstanding thinkers of the contemporary period, as for example Meese and Bork, argue that the present state of affairs is not what was stipulated in the Constitution, and the Founding Fathers did not presuppose such expansion of Government, creation of new (supposedly unnecessary) departments and positions, thus making the modern government unconstitutional. Their ideas cover the main essence of originalism as a trend of thinking in the present days – the Constitution, in their opinion, is a document that has been created to stipulate eternal truths, facts and regulations. Thus, they admit that the changes the modern government introduces in the daily operation of the country, in its structure and the way issues are solved in it, are beyond the US Constitution and violate it. The main opinion of these activists is that the government is chosen to serve the nation and follow the rules stipulated in the Constitution and not to invent new ones, for this reason, their conduct becoming an unacceptable violation of the supreme law of the country.
Another author supporting the opinion of Meese, Bork et al. are Thomas Moore who issued an article dedicated to the topic of legitimateness of the US Congress in 1997. His opinion is really grounded due to the fact that he is a famous and experienced economist, thus he is truly knowledgeable in the sphere of political change. In his article he argues that the creation of new subdivisions is illegitimate because of its being not presupposed by the Constitution, thus becoming illegal and unauthorized. These arguments and debates can be logically continued in the framework of the judiciary branch and the freedom with which law is now interpreted. It is true that the USA is mostly governed with the help of case law and any profitably solved precedent can become a benefit or a failure for a person in court. Nonetheless, here the issue arises on how these precedents have been created and how they are being created nowadays.
The unrivaled freedom of interpretation judges nowadays enjoys due to their argument about the Constitution as a ‘living document’ cannot in any way justify the deviations they make and the mistakes they fix in the case-law of the USA. Due to such free interpretation nowadays practically everyone, according to the Second Amendment, has the right to carry arms, and security stipulated by the Constitution becomes a rather vague notion due to this fact. Here the question on how the freedoms fixed in the eternal, basic document of the US correlate with the current actions of the government comes to the fore – one should decide for him- or herself, whether the terms of the contract concluded more than 200 years ago, are still carefully kept to.