Justice Kagan often asks just the right question in statutory construction cases, and she should carry her logic over to constitutional questions as well.
Wherefore originalism? Lynn Uzzell’s reactions (and here) to Mary Sarah Bilder’s Madison’s Hand suggest that it is worth revisiting that question. Uzzell’s response to critics highlights the degree to which the fight over the meaning of the Constitution is political. That means, she says, it is about power, for “the language of power . . . [is] the language of politics.” Madison’s politics were more classical than that. In the classic fashion, politics is fundamentally an argument about justice. It is about reconciling plausibly just means with plausibly just ends. (Why “plausibly”? Because perfect justice and perfect knowledge of justice are not of this world.)
But what is the justice of originalism? Uzzell writes in her first post:
This preference for the meaning fixed by the Framers may be rooted in non-rational (which is not to say irrational) sentiment—a veneration for what is old or ancestral. Or it may have more rational origins. For instance, some might believe that, in spite of the Framers’ very real personal failings, they deserve our trust for devising an ingenious system of government. Another reason for trusting them may be this one: they are impartial umpires over our own constitutional controversies (whatever might have been their partisan goals in their own time). The popular form of originalism is therefore rooted in a respect for the judgment of the Framers.
Uzzell seems to skip past what I have always taken to be the primary argument for originalism. It was the just means of applying the principles of 1776. The rationale for what is now called “originalism” has chiefly to do with the legitimacy of the 1787 Constitution. It became the supreme law of the land when the people, acting through ratifying conventions in the states, ratified it. What did they ratify? The constitution presented to them. That is the constitution to which Americans are bound.
Everyone, at least everyone who is sane, acknowledges that any constitution that is to last must change over time. The question is, how? The U.S. Constitution, unlike the early state constitutions, has a provision for amendment, allowing the sovereign people to weigh in and give their explicit consent to any change. If Madison was, well, a politician and an imperfect human being, who sometimes shaded his notes of the Federal Convention, this has no bearing upon that logic.
Uzzell reminds us that the phrase “living constitution” was invented by Progressives as a polemical term, intended to transform our understanding of what makes a constitution legitimate. Interestingly, Madison used a very similar term. He explicitly repudiated the idea of allowing the changes to which “living languages are constantly subject,” for that would be to undermine the legitimacy of the Constitution itself. He wrote to Henry Lee in 1824:
I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.
If the ratification process had meaning, it must be the case that there is a fixed meaning of the constitution the people ratified, or the ratification process was in error, Madison suggests, “In that sense alone it is the legitimate Constitution.”
Why so? The most logical reading of Madison is to point back to 1776. Governments are instituted among men to protect their rights, and “derive their just powers from the consent of the governed.” If the government to which they assented is interpreted in such a way as to find it to be a grant of open-ended powers, unless they explicitly consented to such a grant, then the rule of interpretation has itself rejected the very ratification process which is what made the Constitution the supreme law of the land.
How, then, to change the Constitution? Amend it. It is no coincidence that Madison urged, in his last act as President, amendment of the Constitution so as to add necessary powers that were not in the original grant.
The Madisonian view of the subject is not the only one, but there is a powerful logic to it, one that the votaries of the “living constitution” have quite successfully obscured. Many scholars seem to think that amendments are, somehow, a rejection of originalism. A few years ago, a very senior and distinguished colleague mocked originalists for blindly revering the Founders and for having no space for the Thirteenth, Fourteenth, and Fifteenth Amendments in their view of the Constitution. Originalism, of course, is based upon the view that the proper way to change the constitution is to amend it. That Uzzell does not mention this logic when she lists Madisonian justifications for originalism suggests the depths of the change.
Madison’s approach, admittedly, is not without problems. For starters, the amendment process has become a barrier against having the people change the Constitution with their explicit consent. Beyond that, there is the problem of how to determine the meaning of what the people ratified. From the time of Alexander Hamilton and Thomas Jefferson’s fight over the Bank of the United States, Americans have argued about the document’s original meaning.
Observing the unending struggles over meaning, Uzzell posits a dispute between lawyers or law professors and historians. She finds that both groups are guilty of “law office history.” All that is reasonable enough, although I will add that the originalist law professors I read tend to know their history rather well—sometimes better than my fellow historians. That said, her stress on the importance of presenting arguments to the public is spot on. The boundary between law and politics will always be rather permeable, particularly at the constitutional level.
Bilder’s recent work, like Jack Rakove’s earlier work, argues that it is impossible to pin down the Constitution’s original meaning. It is, however, one thing for scholars to demonstrate that the prevailing understanding of the Constitution has changed over time and to say that that makes it a “living” document. (In the 1790s, a majority might have agreed with the Federalists that freedom of the press simply meant no prior restraint. That consensus did not last long.)
It is quite another thing to say, “This is how the Constitution must be changed to meet today’s challenges,” and to impose said change without consulting the people. The phrase “living constitution” is usually used in the latter sense—or, at least, to justify such constitutional transformations by making the language “live.”
Before signing off, I wish to add one complication to Uzzell’s approach. What is history? That Cleo is the muse of history reminds us that history is an ancient discipline, going back to Herodotus and Thucydides, and continuing through the ages from, among others, Livy to Machiavelli to Gibbon to Henry Adams, and beyond. Those we today call “historians” and who have academic training in history are, in some ways, part of that ancient guild. In other ways, however, the modern discipline, with the PhD in history, suggests that the study of history is somehow a “scientific” discipline (and not in Aristotle’s definition of “science,” either). That is itself an invention of the late 19th century.
In other words, when we modern historians speak of “thinking historically” and using that approach to study the Founding era, we are anachronistically reading an understanding of history (including the history one needs to study to understand the Constitution) back into the past. The methodology of the modern history profession might obscure the thinking of the “foreign country” that is the past, making it more difficult to understand the Constitution the people ratified in 1788 and have amended many times since.