“Textualism” and “originalism” emerged as approaches to interpreting the Constitution in order to reconnect American judicial decisions with the document they were supposedly applying. The “living Constitution,” so in vogue from roughly the 1950s through 2000 (though not really firmly buried until Anthony Kennedy finally left the Supreme Court), unfettered the Constitution from its text. Under “living Constitutionalism,” the federal courts became secular oracles, divining the “spirit” of the “evolving” Constitution, even if their divination was nowhere to be found in — or, worse, contradicted — that document.

That debate was not just an arcane dispute between two schools of legal thinking. That debate implicated something deeper: the genuine freedom of Americans to govern themselves. When the courts invented Constitutional “rights” and “obligations” out of thin air — based not on the text or history of the Constitution but the divinations of what the “evolving” Constitution demanded — they undermined democracy. They removed decisions the people, not unelected judges, should make. I maintain that, for the past 60 to 70 years, the greatest threat to Americans’ freedom came not from the executive but the judicial branch.

The “living Constitutionalists” usually seized an ambiguous phrase — “due process,” “equal protection,” the “regulation of interstate commerce” — and festooned layers of meaning onto it that only a particularly lurid (or Ivy League law school-trained) mind could conjure. That is why there has been a concerted effort to advance “textualism” and originalism in American law through the appointments of American judges. If the words of America’s basic law do not mean what a plain reading of them indicates they mean, neither more nor less, or if those words are taken to require things unimaginable at the time they were written, Americans have lost their capacity to rule themselves.

If the Constitution exists to protect American freedom within the ordered structure of rule of law, then the Constitution is essentially a contract. But contracts whose terms are forever “evolving,” always dependent on the shifting views of five unelected people, are no contracts. They are coverups to conceal the people’s loss of deciding their own futures. As President Abraham Lincoln put it in his First Inaugural Address, “the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal [the Supreme Court].”

If Americans have any doubt about why we need textualism and originalism, consider Jakub Cupriak-Trojan et al. v. Wojewoda Mazowiecki, the November 25 judgment of the European Court of Justice (ECJ) requiring EU member states to recognize “same sex marriages.”

The plaintiffs were two male Polish citizens. Because Poland’s Constitution defines marriage as a union of a man and a woman, Polish law cannot and does not allow “same sex marriage.” The two therefore went to Germany because that country allows “same sex marriage.” They then returned to Poland and demanded the local registrar record their marriage in the civil registry. The registrar declined, citing the Polish Constitutional ban and the lack of any provision for “same sex marriage” in Polish law.

Lacking legal recourse in Poland, the two took the case to the ECJ in Strasbourg, contending that the refusal of the Polish civil registrar to record their marriage for Polish legal purposes constituted illegal “discrimination” against them as European Union citizens. The ECJ agreed. Its rationale demonstrates the dangers of how legal “rights” ungrounded in legal texts run amuck.

The ECJ admits that it cannot force Poland to adopt a “same sex marriage” law because marriage law in Europe is (still) considered a matter of national sovereignty (“competency,” as the EU faithful call it), not European law. One would think that closes the question. One would be wrong. Not registering the German “marriage” of two Polish citizens violates a “European” citizen’s right to movement, his right to travel. In the theology of the European Union, there are four essential “freedoms”: freedom of movement of goods, services, people, and capital. Those four “freedoms” are deemed as bedrock principles. Their meaning has been expanded far beyond their original historical meanings.

The European “four freedoms” originated in the 1957 Treaty of Rome, which was the foundational document — the “constitution” — of the European Economic Community (EEC). The EEC was intended as a partnership of nations sharing common interests in fostering free economic intercourse among themselves. The EEC itself came from the European Coal and Steel Community, an effort to keep France and Germany from starting yet another world war over resources. The “freedoms,” therefore, originated as a means of promoting economic contact. Three of the four “freedoms” are economic (goods, services, capital). The fourth was also arguably understood in connection with economics, too. “People” here meant essentially “labor,” the ability of workers to work across member states.

Consider, for example, that although “free movement of people” was first articulated in 1957, it was not until 1999 that the term was taken to mean open internal borders within Europe. In other words, for 42 years nobody in Europe thought that “free movement of people” meant the rights of Europeans were violated if they had to pass through immigration controls between European countries. However, by 1999 — when “open borders” became the Pole Star of liberal elites — the term was redefined to mean European Union countries could not have regular immigration controls on their borders and that future countries wanting to join the EU would have to agree practically to surrender immigration control over their borders with any other EU state. What was not a violation of “free movement of people” for more than four decades was now redefined to be a violation.

Right now, if a Pole, say, wants to live in Austria or France, “free movement of people” means in practice they can walk right over the border, no questions asked. However, Europe still hasn’t “evolved” into asking whether residency formalities themselves offend the sacred right of “free movement of people.” I’ll give a personal example. My daughter is a dual national, American and Polish. She lived for some time in Austria and in France. The residency registration process in France was practically minimal; the process in Austria involved interviews with more questions than one would have expected “free movement of peoples” would require.

So, in EU-think, “free movement of peoples” is a sufficiently elastic phrase that can be stretched to mean what the elites think it should mean. In the case of the ECJ case, it was stretched into Poland must register a “same-sex marriage” because otherwise “free movement of peoples” would be impaired among “EU citizens.” Even though Polish law makes no provision for such “marriages.” Even though the Polish Constitution does not recognize them. Even though the EU pays lip service to the idea that defining marriage is a matter of national, not EU “competence.” Even though neither party would in any way be denied the right to live in Poland — both because each one as a Polish citizen has a right to live there and because the EU right to residence is not in question. The ECJ chose to rewrite the meaning of the “right to movement” to mean “the right to move as married across borders.”

What the ECJ has done is expand the meaning of a general principle to achieve an outcome it wanted and forced it on all EU member states. Because ECJ rulings bind all member states, it means in fact that even if an EU country does not recognize “same sex marriage” within its borders, it must recognize “same sex marriages” imported from beyond its borders. Indeed, the ECJ ruling creates paradoxical discrimination: it privileges foreign “marriages” imported into a member state over the marriage laws of that state. The Court will not (because it cannot) say the lack of “same sex marriage” in Poland is “discrimination,” so two Poles of the same sex wanting to “marry” in Poland are out of luck. But all you need to do to have your “marriage” recognized in Poland is… do it in Germany. That negates your country’s laws and, in fact, gives you a privileged position in your home country: you have all the rights and privileges of marriage without necessarily the formal title in that country.

Make no mistake about it, this decision is political. The leftist Donald Tusk government is trying to force a “significant other person” bill through Parliament. It knows it cannot enact “same sex marriage.” It also knows that its “civil-union-in-all-but-name” bill will be vetoed by Law and Justice party President Karol Nawrocki. But Tusk has to please his “squad,” the “New Left” in his coalition. That bill (even though, in order to hold his coalition together, specifically rules out made-in-Poland civil unions from being registered by civil registrars) is an example of his political bargain; the other is the election November 18 of an ex-Polish Communist Party member as the new Speaker of Parliament.

The ECJ’s decision shows just what happens when a legal provision is interpreted independent of history or original language. In 1957, when this term originated, nobody considered it to mean another state had to recognize civil status in violation of its own laws, and no member state considered sexual differentiation irrelevant to entering into marriage. The phrase didn’t change; what activists wanted to read into it did.

Consider one additional legal question here: the question of state sovereignty. The Polish Constitution defines marriage as a man-woman relationship. That Constitution dates from 1997, i.e., before expansion of the meaning of what “free movement of people” might mean. The Polish Parliament, which in 2004 agreed to EU membership, may have assumed the provisions of its national constitution regarding marriage had nothing to do with EU accession. Twenty-one years later, despite nobody changing the text, that same language apparently does in practice render those constitutional provisions nugatory.

The Constitutions of Hungary and Slovakia both also define marriage as a man-woman relationship. Slovakia raised the stakes this year by amending its Constitution, effective November 1, to declare that its Constitution and not EU law is supreme when it comes to family issues, including marriage. That amendment has already been subject to an “infringement” proceeding by the European Commission, which asserts that a country’s Constitution cannot supersede EU law. To its view, Brussels is legally supreme. Let us ask if the bishops of Europe — many of whom are cheerleaders for the European Union — will come down in defense of national moral sovereignty in the face of EU moral creep.

If a country’s constitution is constrained by an external source, what kind of “sovereignty” is that? When Czechoslovakia sought to break away from Soviet control in 1968, the Warsaw Pact invaded that country (as it did in 1956 in Hungary), justifying its incursion on the grounds that Warsaw Pact members had “limited sovereignty” (the so-called “Brezhnev Doctrine,” which, of course, did not apply to the USSR). National “sovereignty” could not impair the “socialist community.” Neither, apparently, can it impair the “Brussels community” or its Diktats.