The Folly of “Originalism”

What was once an obscure, fringe — many thought eccentric — legal theory is now the prevailing jurisprudence of the land, adopted by at least five members of the Supreme Court. That theory is called “originalism” and the idea is that the Constitution should be interpreted just at its authors intended those words when they were adopted in 1789.

Never mind the confusion surrounding who intended what. The document was the work of a large group of men with different ideas about what various parts of it meant. And there were some things laid between the lines and other things intentionally left untouched. Slavery was avoided entirely because to even bring it up would have resulted in the southern states bolting the constitutional convention.

And, of course, never mind how the SCOTUS originalists square this view with their expansive vision of the Second Amendment, just as one prominent example. I would be fine with the interpretation that any law abiding citizen who is a member of the National Guard (a militia as mentioned in the first clause of that amendment) had access to every musket and other firearm available in the late 18th century.

In fact, the Second Amendment had more to do with Americans’ distaste for a standing army than it had to do with personal ownership of guns. Here’s historian Joseph Ellis on that point:

“Madison was responding to recommended amendments from five states, calling for the prohibition of a permanent standing army on the grounds that it had historically proven to be an enduring threat to republican values. It is clear that Madison’s intention in drafting his proposed amendment was to assure those skeptical souls that the defense of the United States would depend on state militias rather than a professional, federal army. In Madison’s formulation, the right to bear arms was not inherent but derivative, depending on service in the militia. The recent Supreme Court decision (Heller v. District of Columbia, 2008) that found the right to bear arms an inherent and nearly unlimited right is clearly at odds with Madison’s original intention.”

So, here’s a scholar who knows as much about the authors of the Constitution as any historian and he’s saying that James Madison’s original intent was completely different from what this Court is saying the Second Amendment means. A cynical person might be led to believe that the Court’s originalists are just conservative extremists reading “original” intent as it suits their conservative views. But I am not a cynical person.

James Madison was the intellectual firepower behind the Constitution. Does any “originalist” actually care what he thought about the Second Amendment?

That quote comes from Ellis’ wonderful, and wonderfully brief, book about our nation’s founding, The Quartet. In it, Ellis tells what turns out to be a somewhat harrowing story of how George Washington, John Jay, Alexander Hamilton and James Madison conspired against long odds to invent the United States of America.

When Americans won their independence the assumption among most of the public and most of their leaders was that the colonies would more or less go their separate ways. The idea that there would be any kind of meaningful national government, and a true United States of America, was either beyond imagining or actively opposed by most people. In fact, replacing King George with a strong central government was considered a betrayal of what the revolution was all about in the first place.

And yet, over the course of three years these four men engineered just that.

Ellis ends his book with more thoughts on originalism:

“The last word must belong to Jefferson, even though he had the good fortune to be safely ensconced in Paris during the summer of 1787, had no role in making the Constitution happen, and went to his maker believing that federal authority over domestic policy was a betrayal of the American Revolution rather than a rescue. Jefferson also had the good fortune to live into the third decade of the nineteenth century and therefore to be asked countless times what he thought his remarkable generation had wrought. And because he also happened to be the most lyrical prose stylist of the era, his eulogy needs to be noticed:

Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it and labored with it. It deserved well of its country…. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered…institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him as a boy as civilized society to remain ever under the regime of their barbarous ancestors.

“Jefferson spoke for all the most prominent members of the revolutionary generation in urging posterity not to regard their political prescriptions as sacred script. It is richly ironic that one of the few original intentions they all shared was opposition to any judicial doctrine of “original intent.” To be sure, they all wished to be remembered, but they did not want to be embalmed.”

I’ve been writing this week about the decisions handed down by the conservative majorities on the U.S. and Wisconsin supreme courts as their terms wound up for the summer. Don’t let anybody tell you that there is some consistent, defensible and even noble principle behind many of these decisions. These are simply very conservative people selectively discovering what our nation’s founders meant when what they think they discover suits their conservative ends… and when it doesn’t they just make some “original intent” of their own.


Published by dave cieslewicz

Madison/Upper Peninsula based writer. Mayor of Madison, WI from 2003 to 2011.

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