Americans are faced with what appears to be irredeemable gridlock in our national government. People who are supposed to be making decisions – in particular, members of the House and Senate – seem hopelessly engrossed in a game of virtue shaming and gotcha. The Supreme Court, which is supposed to be an apolitical arbiter of disagreements in other parts of the government, is ensnared in the same gridlock. (I wrote about some pre-originalist First Amendment cases on May 31, if you want to take a look.)
The current court espouses a doctrine of originalism, which says that the only way to interpret the Constitution is to evaluate it based on what the people who wrote it meant it to say. Originalism would not pass the originalism test, oddly enough, because the doctrine is fairly new to American jurisprudence. According to Wikipedia:
Originalism can be traced to raced to Robert Bork's “Neutral Principles and Some First Amendment Problems,” published in the Indiana Law Journal in January 1971. However, it was not until the 1980s, when conservative jurists began to take seats on the Supreme Court, that the debate really began in earnest. "Old originalism" focused primarily on "intent.” But that line was largely abandoned in the early 1990s; as "new originalism" emerged, most adherents subscribed to "original meaning" originalism, though there are some intentionalists within new originalism.
Originalism is the unifying belief underpinning the Federalist Society, a conservative think tank that has provided policy guidance to the last two Republican presidents – George W. Bush and Donald J. Trump. Justice Antonin Scalia was the original originalist on the Supreme Court, and his acolytes populate the federal bench. In the Trump administration, specifically, Trump’s three Supreme Court appointees were taken from a list provided by the Federalist Society. Through the hundreds of lower court judges the former president placed throughout the federal judiciary, the doctrine of originalism has become the dominant ideology in conservative constitutional thinking today.
Originalism can be challenged intellectually in a number of ways – but one of the most important questions is how we can know what the Framers of the Constitution thought about the elements in the document. For some parts of the Constitution, there is remarkably little information about what the Framers thought. They did not speak with one voice – they disagreed with each other, and they sometimes changed their minds so that their later views conflicted with their earlier views. The Constitution is a compilation of compromises and does not reflect what the founders actually thought about the issues it addresses. Just as is often said about Scripture, “the devil can [also] quote [the Constitution] for his purpose.”
The Federalist (often referred to as The Federalist Papers) is the only place where the framers of the Constitution wrote in an organized way about what they meant when they crafted the document. The 85 essays that make up this series were written by three men deeply involved in the process – Alexander Hamilton (he wrote 51 of the essays), James Madison (29), and John Jay (5) – between October 27, 1787, and August 16, 1788. The purpose of the essays was to explain the Constitution to the relevant public (the wealthy white men serving in the ratifying conventions in each state) and to preempt objections to the document by explaining how they reached the compromises embodied in it.
We have some idea as to what the group of men loosely identified as “the founding fathers” thought about The Federalist:
James Madison called it “the most authentic exposition of the text of the Federal Constitution.”
Thomas Jefferson (who was in Paris during the Constitutional Convention but who was kept apprised of its activities by letters from Madison and others) said it was “the best commentary on the principles of government which ever was written.”
Jefferson also had something to say about the idea of originalism (although he didn’t use the term, because neither the term nor the doctrine existed at the time): “Some men look to Constitutions with sanctimonious reverence . . . but . . . law and institutions must go hand in hand with the progress of the human mind.” Not a very originalist perspective, I must say.
In his 2002 book How Democratic Is the American Constitution?, Robert Dahl, a 20th-century political scientist who taught at Yale for 40 years, pinned down the problem with the whole idea of original intent when he wrote “What is more relevant . . . is the extent to which the members [of the Constitutional Convention] . . . did not know what they were doing.” Why are the conservative members of today’s Supreme Court convinced that they know what the framers were thinking when the framers themselves weren’t sure?
And even if we could figure out what they meant – why should their insights bind ours? In the United States, we deify the somewhat undefined group of people we call “the founding fathers.” We identify them as the greatest minds that created the greatest constitution and founded the greatest nation the world has ever known. Whether their minds, the constitution, or the nation are the “greatest the world has ever known” is the subject for another day. But the knowledge base on which they operated was woefully inadequate. Here are the areas where most of us know more than the founding fathers did:
How a market economy works. In the 1780s, there wasn’t a market economy yet. Adam Smith’s treatise The Wealth of Nations, which had just been published in 1776, described a pre-industrial economy that would be supplanted by a modern industrial economy within 50 years of the book’s publication. Yet the originalists quote Adam Smith as if his ideas are still relevant.
Representative Democracy. They were in the process of inventing the first intentional representative democracy in world history, so they could not be expected to understand how it would work. The backdrop to this was the British political system, which incorporated some notions of representation in the context of a monarchy and an upper House made up of hereditary peers. Some of the conclusions that the founding fathers reached – about the unavoidably negative impact of political parties, for example – were erroneous.
Human rights: The framers were enmeshed in a society that valued white male property owners over other people. Many of them were slaveholders – and we should not be persuaded that they didn’t know it was wrong. They knew. We know from their private (and sometimes public) statements that they knew. They just couldn’t see the economic viability of a different labor system – at least they couldn’t envision another system that would allow them to retain their wealth and prominence. By the same token, they devalued women and assumed that people of “the middling sort” or lower echelons of society were not as capable as they were.
Geography: Enormous portions of the world were simply not known to most people in the 18th century. Eighteenth-century maps of the United States label large swaths of land in the west as “Parts Unknown,” and show California as a island. Maps of Africa show development along the west coast (known to Europeans because of the slave trade that was centered there), along the Mediterranean, and in the areas along the Nile River. The interior of the continent has no details – no rivers, lakes, or mountains. This was also “Parts Unknown.”
Germs. No one understood the concept of disease transmission through micro-organisms until the 19th century. Medical personnel did not routinely wash their hands in the 18th century.
Medical care: Treatment generally involved a variety of herbs and salves. “Bleeding” – removing the “excess blood” that caused fever and sickness – was the most common medical treatment for many ailments. This is what killed George Washington. He had contracted a sore throat in December 1799 and died after several days of treatment, including doses of various herbs and teas and being drained of more than 32 ounces of blood (about 1/6 of the total blood volume in his body) over the course of two days.
The human brain: The structure of the brain was understood by the end of the 17th century, but scientists discovered that the brain operated through electricity in the nerves only in the early years of the 18th century.
Psychiatry: Historically, mentally ill people had been locked away as hopelessly incurable. Philippe Pinel, known as the “father of modern psychiatry,” introduced some elements of modern psychiatric practice in the last decades of the 18th century and the first decades of the 19th century. Some of the framers (Benjamin Franklin comes to mind) grew up in an era that was just a few years removed from the Salem Witch Trials.
Celestial Mechanics: By the end of the 16th century, the work of Nicolaus Copernicus, Johannes Kepler, and Galileo had solidified the idea that the solar system was centered on the sun and that the planets moved around it. It wasn’t until the 18th century that Isaac Newton applied the laws of physics to the solar system. The most educated of the founding fathers probably knew about this, but the common folk almost certainly did not. Meteors and other celestial phenomena were considered omens of God’s wrath.
The weather: Benjamin Franklin achieved scientific prominence in both Europe and the United States when his experiments in the 1750s identified the nature of lightning. Before these experiments, harmful weather phenomena like lightning strikes and violent storms were also seen as indicators of God’s displeasure. By the 1780s, the most educated people in society had been swayed to these more “modern” beliefs, but that belief had not penetrated below that level.
Evolution. Charles Darwin’s On the Origin of Species wasn’t published until 1859.
Dinosaurs. The first mention of any such creature appeared in a scientific journal in 1824. Today’s average five-year-old knows more about dinosaurs than anyone at the Constitutional Convention.
And the list could go on but you get my point.
We could add all the technology that we understand and use every day, although that’s probably not fair. Many of the founders would be befuddled by it, although some of them would be interested, and we’d never be able to persuade Jefferson to put down his phone.
My point is this – we should not be bound by a made-up doctrine of originalism that places 21st-century America in thrall to 18th-century men who knew less about almost everything than we know today. In what world – other than the minds of today’s conservative politicians who are desperate to hold onto power – does this make sense?
Good one! And funny! Germs. Corporations. Love it.