The Framers Never Intended to Bind Us Forever to 1789

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.

The New Civilian Climate Corps

Immediately upon assuming office, President Biden issued an executive order addressing his climate objectives.  Prominent among these was the creation of a Civilian Climate Corps to tackle climate change resiliency and provide job training to underemployed youth.  The new CCC would be modeled on a popular New Deal program that put thousands to work on conservation projects during the Depression. From every angle the new CCC seems like a good idea, but its uncertain future is bound up with the stalled Build Back Better legislation.

The Depression-era program was known as the Civilian Conservation Corps, which ran from 1933 to 1942 and employed roughly 3 million young men.  They were set to work fighting wildfires, building more than 100,000 miles of roads and trails, 318,000 dams and tens of thousands of bridges.  They strung telephone wire where it had never been before.  They dug erosion-control ditches on private land and helped farmers with other land conservation projects.  Many of the fire towers, state park buildings and other structures built by the Corps are still in use.

The participants in the Depression-era Corps were overwhelmingly male, white and poor.  A Time magazine article from the period described the 1938 Corps as 67% from “relief families” and another 29% from families “below the normal standard of living.”  Only 11% had finished high school.  Corpsmen were paid $30 per month, much of which had to be set aside either for dependents or to be drawn when the participants left the program.  This whole scheme was enormously popular with the Corpsmen and the public.  When back home the Corpsmen were treated as heroes.

The proposed new Civilian Climate Corps has a different name to reflect the needs of the present day.  The focus would be on job training for careers in the conservation space for urban youth who don’t normally have opportunities of that sort.  Biden proposes to spend a mere $10 billion on the new CCC, a small sliver of the proposed $1.75 trillion Build Back Better legislation. Pay would be $15 per hour plus health care and other benefits.  The jobs would mostly be short-term, following the model of AmeriCorps.  Perhaps 20,000 per year could be employed.

The new CCC would not become involved in politically charged climate issues. Its goals are noncontroversial and clearly stated in the executive order:

The initiative shall aim to conserve and restore public lands and waters, bolster community resilience, increase reforestation, increase carbon sequestration in the agricultural sector, protect biodiversity, improve access to recreation, and address the changing climate.

It is also unlikely to be a gap year for college kids from the suburbs.  Rather it would recruit from lower-income families and communities of color.

While the new CCC is not overtly designed to reduce political polarization, that would be a welcome byproduct.  The racial integration of military units during World War II and Korea, while not complete or perfect, went far better than critics thought it would.  It was largely responsible for a greater general acceptance of integration in later decades.  In 2006 a meta-study of over 500 studies in thirty-eight countries revealed strong evidence of the power of simple contact to reduce prejudice among groups.  Proponents of national service have recognized its power to serve as a binding agent and catalyst for democracy. Our racially and politically polarized society could use a dose of this. Instead, we sort ourselves into like-minded communities.

We are so polarized now that even the name Civilian Climate Corps causes opposition to the initiative. In October 2020, when the name was still Civilian Conservation Corps, 44% of Republican voters said they “strongly supported” the idea and 40% of Republican voters “somewhat supported” it.  In April 2021, after the initiative was renamed the Civilian Climate Corps, just 11% of Republican voters “strongly supported” and 33% “somewhat supported” it.  In a floor speech in the fall of 2021, Senate Minority Leader McConnell said the new CCC was “pure socialist wish fulfillment” and called it a “made-up government work program . . . for young liberal activists.”

Government cost accounting and revenue projections are often hard to penetrate and surely must be taken with a grain of salt. But since the new CCC would operate on a model similar to AmeriCorps, return on investment from that government program offers a clue of what to expect from a Civilian Climate Corps. The federal ROI for AmeriCorps and similar programs at the national level is 3.5.  That means that for every dollar spent on these programs the federal government alone receives $3.50 in returns from tax revenue gains and savings.  The federal cost-benefit ratio, calculated differently, is 17.3.  That means for every dollar spent on AmeriCorps and similar programs the return to society, program members and the government is $17.30.

Biden’s executive order directed the Interior and Agriculture departments to design the new CCC initiative “within existing appropriations.”  How this could happen is unclear. These departments were to have submitted a strategy report by April 2021, but that report is overdue.  Without financial support through the Build Back Better Act, or some other specifically targeted legislation, this worthy program is unlikely to get off the ground. And without support from West Virginia Senator Joe Manchin, Build Back Better cannot pass the Senate.

It Is Time to End the Filibuster

To be elected Governor of West Virginia, a candidate needs one more vote than his opponent.  This is majority rule at its most basic.  Majority rule is also a bedrock principle in our federal system.   Accordingly, a bill in the U.S. Senate brought to a vote needs only 51 votes out of 100 Senators to pass.  But today the legislative process in the Senate – indeed in all of Congress — has ground to a halt.  We cannot address the compelling issues of the day in a way that a majority of voters demand.  What has happened to us?

The answer is painful.  We have allowed the filibuster, a procedural rule not found in the Constitution or any law, to require proponents to have a supermajority of 60 votes before most legislation in the Senate can pass.  This means that those opposing action need only a minority of Senators to block progress.  And since any bill passed by the House of Representatives also requires passage by the Senate to become law, the minority that rules the Senate rules the Congress.  While the filibuster has existed in the Senate since the mid-19th Century, only in the 21st Century has it been converted to a tool of relentless obstructionism in the entire Congress.

The Constitution Requires Only a Simple Majority to Pass a Bill

The Articles of Confederation, which existed before the Constitution, were a failure in large part because they required a supermajority of nine states out of thirteen to take any significant action. As a result, the federal government could not finance itself or make critical decisions for the nation’s defense and development.  Our Constitution was intended to remedy the deficiencies in the Articles of Confederation.

While the Framers of the Constitution disagreed about many things, the importance of majority rule was not one of them.  The requirement of a simple majority is not expressly spelled out in the Constitution, but two principles of construction support it.  Article I, Section 7 establishes that a bill becomes law when it is “passed” by the House and the Senate and signed by the President.  In 1789 majority rule was already established in the British Parliament.  Those who ratified the Constitution would certainly have understood “passed” to mean passed by a majority vote.  In Federalist 22, Hamilton called majority rule the fundamental maxim of republican government and argued that minority veto power would lead to “tedious delays, continual negotiation and intrigue and contemptible compromises of the public good.”  This is an apt description of today’s Senate.

During the Constitutional Convention, a proposal was made to require a supermajority for the passage of bills in Congress.  It was rejected.  The only exceptions were for special circumstances, such as impeachment and overcoming a Presidential veto.  Obviously, the Framers knew how and when to impose a higher bar for action when they felt it advisable.  Their silence on the number of votes necessary to “pass” normal legislation is telling.

A Short History of the Filibuster 

The Constitution bestows on the Senate the right to make its own procedural rules.  From 1789 to 1806 Senate rules allowed debate to be ended by majority vote on a motion called “the previous question.” In 1806 – by mistake – the Senate omitted that rule from its procedures, leaving no way to cut off excessive debate.  It was not restored in subsequent years because Senators favored full debate without limitation.  But there was always an understanding among Senators that when debate had been fully aired a vote would be taken and a simple majority of votes would prevail.

The original filibusters involved a Senator holding the floor continuously, much as in the movie Mr. Smith Goes to Washington.  But talking a bill to death did not begin until the 1840s.  There were few of these filibusters compared to today and they were limited to issues of high passion and import, mainly slavery.  In 1917 opponents of entering WWI filibustered legislation permitting the arming of merchant ships.  The public was outraged, leading to adoption of Senate rule 22 allowing debate to be closed by a vote of two-thirds of Senators present on the floor.  It now requires three-fifths of the entire body (60 votes).  In this way a minority of 41 Senators can kill a piece of legislation.  Routinely this minority of Senators represent a minority of the population.

The Filibuster Became the Favorite Tool of Slave Owners, Racists and Opponents of Civil Rights

The filibuster’s soiled reputation is primarily the result of its shameful use by Southern Senators to protect the institution of slavery, then to protect Jim Crow laws and practices in the South, then to oppose civil rights legislation.  Today it is being used by much the same group to oppose voting rights legislation.

Senator John C. Calhoun of South Carolina was the intellectual architect of the notion that a minority should have a veto over the will of the majority.  In 1828 he developed the concept of nullification by which individual states could decide which federal laws applied to them.   In the 1840s he merged the previously rare filibuster with his argument for protecting minority rights.  He then employed this to oppose any measure that even remotely threatened slavery.  In Kill Switch, author Bruce Jentleson described Calhoun succinctly.

Calhoun was the foremost political leader of the closest thing America had to an aristocracy, deriving his power from the support from the planter class of the antebellum South.  By using that power to protect slavery he prolonged the suffering of the most oppressed minority imaginable.

But the racially oppressive use of the filibuster didn’t end with the abolition of slavery.  In 1922 Southern Senators filibustered and killed legislation making lynching a federal crime.  This was the start of their calculated obstruction of all civil rights bills.  Thereafter Southern Senators organized themselves into a bloc that would regularly meet to map out filibuster strategy.  They successfully filibustered anti-poll tax bills four times in the 1940s.  They blocked fair employment practices legislation in the 40s and 50s.  Their opposition to the 1964 Civil Rights Act led to a two-month filibuster.  This is a short list – there is much more.

Those Senators who defend the filibuster today with high-sounding principles are the heirs of this disgrace.  Their justifications are based on a false alternative history.   In truth the filibuster exists now solely to benefit the minority of the population who elect this minority of Senators. 

Defenders of the Filibuster are Wrong

There are many reasons given by defenders of the filibuster.  Here are the major ones. The Senate has the Constitutional right to make its own rules, even a rule that requires a supermajority. The filibuster is a tradition of the Senate, preserving free speech and debate.  It protects small states from being overwhelmed by large ones.  It protects minority interests from being overwhelmed by the majority.  It permits tempering of hasty, ill-advised legislation sent over from the more democratically elected House.  And finally, it promotes bipartisanship.  All are unpersuasive and easily exposed.

What really motivates Senators who defend the filibuster these days is political power.  In their important book Politics or Principle? Filibustering in the United States Senate, Sarah Binder and Steven Smith show convincingly that filibuster Senators are not motivated by bipartisanship, protecting minority rights and free speech, or any of the other neutral principles commonly asserted.

Senate rules protecting Senate debate have lasted . . . because the rules serve as a foundation of senators’ personal political power. Senators’ positions on procedural reform follow predictably from their political interests.

The current filibuster Senators enhance their political power by satisfying their constituency’s negative partisanship – stopping what their Democratic opposition wishes to accomplish.  The voters represented by these Senators, while a minority nationwide, are the strongest opponents of social change in the nation – the same political profile owned by Calhoun’s antebellum constituency.  In Kill Switch, Jentleson cites research concluding that the “voters and interests on whose behalf Republican senators wield power represent a reactionary faction far to the right of the American mainstream” and that they are “one of the farthest right factions in any modern democracy worldwide.”

It is true that the Senate can make its own procedural rules, but this cannot mean that in so doing it can nullify other Constitutional principles.  For example, the Senate could not adopt a procedural rule that says states with fewer than 2 million inhabitants (West Virginia included) can only have one vote in the Senate on major legislation.  The Senate could not adopt a procedural rule that only bills passed by the House with substantial bipartisan support will be considered by the Senate.  A procedural rule is only that. It cannot shift the substantive balance created by the Constitution.

The argument that the filibuster protects free speech and debate is laughable.  Perhaps once filibustering Senators who read the phone book on the Senate floor as part of their debate might make that argument.  Now the filibuster protects no debate – it prevents debate.  To commence a filibuster a Senator merely must send an email indicating he intends to filibuster.  He is not required to show up or speak a single word on the Senate floor.  He is not required to persuade anyone of the merits of his views.

Supporters of the filibuster claim that it protects smaller states from being swamped by the power of states with larger populations.  The Framers of the Constitution considered this risk and their solution was to give each state two Senators regardless of population.  That was it.  This already gives small population states an outsized power in the Senate.  For example, a vote from a Senator from Wyoming is cast on behalf of only 573,900 people.  A Senator from California casts a vote on behalf of 39,467,000 people.  And empirically it is not true that small state Senators use the filibuster disproportionately to protect their states from the power of larger states.  In a 70-year period studied by the authors of Politics or Principle? small state Senators voted to cut off filibusters as often as large state Senators.

Finally, there is the canard that retaining the filibuster somehow promotes bipartisanship.  Senator Kyrsten Sinema has recently said that the way to fix the Senate is to “fix your behavior, not to eliminate the rules or change the rules, but to change the behavior.”  Whose behavior?  The Republicans certainly aren’t changing theirs while the filibuster is in place.  Senator Mitch McConnell told reporters in Kentucky that “one hundred percent of our focus is stopping this new administration.”  His “bipartisanship” apparently has nothing to do with whether a majority of voters – Democratic, Independent and Republican – favor a bill.  Bipartisanship in this age of the filibuster amounts to the minority party requiring huge concessions from the majority if there is to be legislation at all.

The Sad Case of Senator Joe Manchin

Senator Joe Manchin of West Virginia is a good man in a tough spot, but he has painted himself into a corner and made it much worse for himself.  Manchin, who vows to protect the filibuster, is one of its poster-child victims — he among all others should know the corrosive effect the filibuster has on democracy.

In 2013 Manchin and Republican Pat Toomey co-sponsored a bill in response to the Newtown, Connecticut massacre of first graders.  The bill set up a reasonable system of background checks for gun purchases, which nine out of ten Americans supported.  Manchin and Toomey lined up broad bipartisan support from 55 Senators.  But there was no great debate on the Senate floor, just quiet failure in an empty chamber.  The bill was defeated by 45 Senators, who represented just 38% of the American public.    In a democratic system that functions, this bill would have passed.  More recently, Manchin reacted in anger when 45 feckless Republican Senators killed the January 6 Commission bill.

In a June 6 op-ed piece, Manchin offered two basic reasons why he will not vote to eliminate or weaken the filibuster.  One is based in the principle that the filibuster prevents abuse by the majority party.  “The Senate, its processes and rules, have evolved over time to make absolute power difficult while still delivering solutions to the issues facing our country and I believe that’s the Senate’s best quality.” But the Senate filibuster most certainly did not evolve for this high purpose and, as for delivering solutions, ask the parents of the murdered Newtown children.  Not even Manchin can argue that legislative action in the Senate is robust and effective.

Manchin’s second reason is not principled.  He points out that the Democrats who now want to eliminate the filibuster sought its protection when Republicans controlled Congress and the Presidency.  More than a claim that Democrats are hypocritical, the argument is that if we do it to them now, they will do it to us later.  This is, of course, true to some extent but we need to look ourselves in the mirror and decide whether this is a democracy or not.  If it is, then the remedy for Republican overreach is defeating them at the polls, not with some bogus Senate procedural rule.

I have heard the lament that if Democrats eliminate the filibuster and pass the For the People Act and other progressive legislation, Republicans will simply repeal them with a majority vote when they take power again.  Obamacare has shown this is easier said than done.  But I would suggest that it is better to have legislated and suffered a repeal than never to have legislated at all.  In Federalist 22, Hamilton wrote that requiring a supermajority for legislative action might give us the false sense that nothing bad will be done, but “we forget how much good may be prevented, and how much ill may be produced, by the power of hindering that which is necessary.”

Bullying Nature

It is a bright spring day in Shepherdstown and I am gazing out my window at my self-inflicted folly – the swimming pool in my back yard. Nature wasn’t on board with the original happy plans behind this water-filled hole. Instead, nature wants to use it to grow all sorts of bacteria and algae, and allow mosquitos, toads and any other interested party to lay eggs and spawn their young. Ah, but we have the answers for nature, right? Engineering, pumps and chemicals. Every summer with much effort and money thrown at the problem, we win – temporarily. But let up a moment and nature inexorably overcomes our efforts. A swimming pool is a fool’s errand to push a large rock up a hill.

A swimming pool is an apt metaphor for what I am trying to say in this piece. Humans are the most intelligent animals ever to walk the earth. But at some point we got a little too impressed with our abilities and began to bully nature into doing what it didn’t want to do. That’s when the trouble started.

Most of our attempts to bully nature have involved water.  Although essential for life in the right amounts, water has developed a bad reputation.  It has the nasty habit of accumulating in huge amounts and sweeping away everything in its path. English and American common law alike have declared water a “common enemy.”

When our engineering know-how and the power of our machines reached a certain level in the 19th century, we engaged water in what amounted to an arm-wrestling match. This contest has not been without its fits and starts, its wins and losses on both sides. But we have begun to realize that when we overcome nature with brute force, there is always an unexpected price to pay.

I just returned from a short trip to the Everglades in southern Florida. The Everglades are really nothing more than the overflow from Lake Okeechobee, which flows in a sheet down a very slight grade to the Gulf of Mexico. Early Florida pioneers saw immediately that if the Everglades could be drained, thousands of acres of rich land would become available for cultivation.

The 19th century saw one failed scheme after another to drain “the swamp.”  But it looked like success was at hand until 1928 when a hurricane filled the Lake and caused it to burst through a dike, drowning 2500 people. Corpses were stacked and burned by the roadsides. The Army Corps of Engineers then changed the rationale for draining the Everglades from reclamation to flood control. The Hoover Dike was constructed, which cut off Lake Okeechobee from the northern Everglades. This solved the flooding problem but created many others.

What once was a swamp dried out and became like a desert. The absence of fresh water allowed salt water to invade the water table, ruining farms. The stress of low water wreaked havoc on the food chain. Sawgrass invaded water-lily sloughs, while other species invaded parched sawgrass marshes.  Populations of wading birds rapidly declined. Then in 1939 one million acres caught fire and burned. Now conservationists and environmentalists have a seat at the table and a serious effort is underway to restore the Everglades.

The April 1, 2019 issue of The New Yorker chronicled a similar example. For millennia, the Mississippi River has over-flooded its banks and deposited silt and soil debris all over southern Louisiana, building up and extending the land in all directions. Because these floods had obvious harmful effects for humans, we built levees along the river for hundreds of miles. Now there are few catastrophic floods that breach the levees. This is a good thing, right?

Well, yes and no. The problem is that there are no further soil deposits to build up the land. The land that was formerly deposited through flooding has begun to compact and subside, allowing the Gulf to retake large areas. At present southern Louisiana seen from a satellite is nothing more than the snake of the Mississippi bounded by levees and a few hundred acres of land on either side.

Believe it or not, the current solution to this problem is more engineering on a massive scale to be paid for with mountains of tax money. One part of this solution is to dredge up silt from the bottom of the river and use massive diesel pumps to redeposit it into areas that would otherwise subside into non-existence. Another part is to cut holes in the levees and during flood periods allow water and silt to inundate areas that have heavily subsided.  The New Yorker piece rightly concludes that humans have so altered nature in an attempt to take control that now we are attempting to take control of our efforts to take control.

All this says to me that when we consider the so-called problems that nature creates, we need less hubris and more wisdom.  We need fewer brute force solutions and a more harmonious approach that doesn’t struggle so much with the way nature works. Maybe through taxation and other policies we could encourage the depopulation of places like New Orleans and Phoenix, where people simply cannot be protected from nature. Brute force may succeed in the short run, but at a huge cost with harmful consequences to environmental balance. And because of entropy and our human fallibility, the brute force solutions always fail in the long-run.

But what could I possibly know? I’m the one who built a swimming pool. Could you excuse me while I go empty the skimmers?