The essence of the doctrine of originalism is that the only proper way to interpret the Constitution is to determine the original intent of the Framers. Our conservative Supreme Court is in thrall to this doctrine, despite the reluctance of the Justices honestly and consistently to apply originalism. They know that a strict application of originalism would lead to absurd, politically disastrous results that would further undermine the legitimacy of the Court. But what if the original intent of the Framers was actually that the Constitution should live and breathe in each period of our history and not be limited to what it meant in 1789? There is considerable reason to believe that this is exactly what the Framers intended.
The first point to make is that the Constitution itself contains no rules or guidelines for its own interpretation. The Framers started with a clean slate and their task was to devise a plan for a radically new form of government that existed nowhere else in the world at the time. But they gave us virtually no instructions or guidance on how we were to interpret the Constitution’s meaning. What’s more, our founding document does not even give the Supreme Court the authority to rule on whether federal or state legislation complies with the Constitution. That power was simply declared to belong to the Supreme Court in 1803 by the Court itself. It is pure nonsense to say that the Framers intended the Constitution to be forever interpreted according to its meaning in 1789 or for us to be locked into any other interpretive theory. There is just no evidence for it. Accordingly, the doctrine of originalism cannot be supported by applying originalist principles.
While we know the arguments and positions on key issues taken by the delegates to the Convention, the actual words of the Constitution were drafted by a Committee of Detail that was appointed midway through the summer of 1789. The Committee’s task was to take the various agreements in principle that had been reached by delegates and commit them to writing. The Committee of Detail consisted of five members – not including James Madison — and was chaired by Virginian James Randolph. The first draft of the Constitution was in Randolph’s hand and contains two rules he followed in the drafting task. They were:
to insert essential principles only, lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events, and
to use simple and precise language, and general propositions, according to the example of constitutions of the several states. (For the construction of a constitution of necessarily [sic] differs from that of law.)
It would be a mistake to view Randolph’s second rule as committing the delegates to textual precision so that the Constitution’s meaning would be fixed. That is completely clear from the repeated use of terms and concepts that invited interpretation. Here are just a few.
- Congress shall have the power to provide for the “general welfare” of the United States – Art. I, Sec. 8, Clause 1.
- Congress shall have the power to make all laws which shall be “necessary and proper” to carry into execution any of the enumerated powers and all other powers vested by the Constitution – Art. I, Sec. 8, Clause 18.
- Congress shall have the power to make all “needful rules and regulations” respecting the territory or other property of the United States – Art. IV, Sec. 3, Clause 2.
- No person shall be deprived of life, liberty or property without “due” process of law – Amend V and Amend XIV.
What could the Framers have been thinking when they used these open-ended and malleable concepts? Surely they understood that they were leaving to us the job of providing meaning.
There is no question that among the Framers were many men of political genius. They were well-versed in the history and weaknesses of various forms of government, including republics. Yet originalists argue that these men bequeathed to us a brittle, inflexible Constitution that with each passing year becomes more difficult to fit to contemporary issues. Could the Framers have been so vain and unable to see the danger of this approach? Unlikely. Without a supple Constitution, that very document risks creating the conditions for its own replacement, and how that happens may not be pretty.
Jefferson was not at the Constitutional Convention in 1787-89, having been sent by Congress on a diplomatic mission to France. But his views were broadly known through his correspondence with delegates. He was certainly one of the most agile and far-reaching thinkers of his age. He wrote later in his life that
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 men of the preceding age a wisdom more than human, suppose what they did to be beyond amendment. . . . 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 disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.
Our Constitution, interpreted through the lens of originalism, cannot keep pace with the times. When the Supreme Court makes that policy choice — because originalism is not required by the Constitution or any law — they render us painfully, dangerously stuck in the past. I feel fairly certain that if somehow we could explain to the Framers what this originalism is all about, they would laugh at us for being so foolish.