Andrew Shankman, an Associate Professor of History at Rutgers University-Camden and the author of a new book called Original Intents: Hamilton, Jefferson, Madison, and the American Founding, writes at the History News Network that originalism is not actually originalist.
Originalism is a complex legal theory. But boiling it down, it means that judges and lawmakers are bound by the meaning the words in the Constitution had when it was ratified. The original public meaning of those words cannot change. Pressing contemporary issues and compassionate wishful thinking cannot allow the words of the Constitution to justify actions that were not intended when the Constitution became the nation’s fundamental law.
Is the claim for an original intent historically defensible? Exploring the constitutional thought and actions of Alexander Hamilton, Thomas Jefferson, and James Madison shows that it is impossible to ascribe a single original intent to even so small a group of critically important founders. Instead, we find multiple original intents and competing meanings. With Hamilton and Madison, two of the most vocal members of the Constitutional Convention, we find, though in very different ways, endorsement of a living, expansive, and flexible Constitution, one that changes with the times and over time.
Testing originalism by investigating the first great constitutional conflict after ratification undermines the claim that the Constitution had one single and stable public meaning for the founding generation.
He goes into quite a bit of detail on that first big battle, which was between Alexander Hamilton, who wanted to create a federal bank to handle taxes and the public debt, and Madison and Jefferson, who believed the Constitution provided no authority on which to base such an action. In today’s parlance, we would call Jefferson and Madison the “strict constructionists” in that situation, and Hamilton perhaps an advocate of “living constitutionalism.”But there are other constitutional issues that arose over which one might apply the opposite label, particularly on issues of unenumerated rights. Shankman concludes:
Looking back at the founding, the first great constitutional conflict, and the interpretive frameworks of two of the most significant founders, can only make modern originalists uneasy. Words such as necessary, defined so dramatically differently, made for multiple meanings and mutually exclusive original intents. 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.”
None of this means that we should not inquire about original meaning at all or that it should not be one of many factors to consider when interpreting the Constitution. We need not dispose of the baby to get rid of the bathwater. But it does support an argument I’ve been making for a very long time, which is that attempts by conservatives to interpret the Constitution are remarkably similar to their attempt to interpret the Bible — only the simplest, most literal meaning need apply. No need for nuance, no need to be thoughtful or apply tools of Construction.
There’s an old saying among Christians: “Jesus said it, I believe it, and that settles it.” One could easily adapt this to their preferences for Constitutional interpretation as well and it would be equally invalid.