Last updated on October 21, 2020
Thinking recently about questions for nominee Amy Coney Barrett, and her Originalism theory, I thought of an interesting argument — “Originalism is not a valid judicial theory because there is no evidence that the constitutional framers believed in it.”
See that? How can you have a valid “Originalist” theory that the Constitution is rigidly to be interpreted by only what the historical record shows that the Founders, or the “public” in 1787, believed . . . if there is little to no (and certainly not consistent) history that the Founders (much less the 1787 “public”) believed that this was the way to interpret the Constitution?
Hoisted on their own petard, as Larry David would say.
Obviously, I was not the first to think of this argument and, after I looked it up, it seems to be a great argument for a number of reasons: (i) it appears to be correct, (ii) it drives Originalists crazy, who begin a mad-hunt to find any quote from a reputable 1780s person that might be construed as consistent with Originalism, and (iii) the exercise in (ii) only highlights the fatal weakness underlying Originalism, i.e., that one can search and cherry-pick the historical record to support near any modern argument, including the validity of Originalism itself. But what can’t be demonstrated is that the Founders, or the public at the time, agreed that this was the proper approach to interpret the Constitution.
One Rutgers history professor addresses this precise objection and helpfully writes:
Hamilton’s original intent to have a top-down and expansive interpretive framework demanded that statesmen have the authority to define in perpetuity useful policies as necessary, as changing times demanded flexible responses. Madison’s bottom-up interpretive framework demanded that the perpetually sovereign people maintain their right through time to be the final arbiters of constitutional meaning through popular politics and the thoughtful expression of public opinion.
Going back to the founders, we find them telling us to focus on our twenty-first century problems and to stop using them as an excuse for our inaction. The stable original intent we can most likely take from them is that we all must be keenly alive to our duty to be thoughtful, compassionate citizens. It is in Madison’s essays written in the early 1790s that we find the richest resonance of his powerful statement at the Constitutional Convention: “In framing a system which we wish to last for the ages, we should not lose sight of the changes which ages will produce.” (Emphasis added)
“Stop using them as an excuse for our inaction.” I always thought that Originalism was wrong. What I have helpfully learned is that it is wrong even on its own terms.
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