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Madison’s Originalism

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.

Reader Discussion

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on June 26, 2018 at 10:00:39 am

Richard Samuelson has objected to a few of my recent posts for Law & Liberty. I have never had the pleasure of meeting him, but like so many quarrels between new acquaintances, ours appears to be based entirely on misunderstandings.

For instance, he writes: “That Uzzell does not mention [Madison’s] logic when she lists Madisonian justifications for originalism suggests the depths of the change” in modern understandings of constitutionalism. Having now spent many happy years specializing in Madison’s political thinking, it would indeed be an embarrassing defect if I failed to appreciate the great man’s logic. However, Mr. Samuelson misunderstood the purport of my argument and is therefore reading too much into the omission. My 2,000 word post was never intended to provide a “Madisonian justification” of originalism; therefore, there is quite a lot that might have been said on that subject but which was omitted in that post.

Madison’s brand of originalism, as Samuelson points out, might best be described as “ratifiers’ intent” (although it is more complicated than that, but the complications will have to be reserved for another post). However, in my first post (the one in which the omission is alleged), I was not in fact explicating Madisonian originalism; rather, I was trying to give an account of “the popular form of originalism.” I was attempting to explain why it might be that clear majorities of Americans favor “Framers’ intent” originalism. Like Mr. Samuelson, I do not find the logic of that choice as forceful as Madison’s logic when he defends his own brand of originalism; nevertheless, I believe it is important for constitutional scholars to understand both.

Mr. Samuelson also takes me to task for my post, “The Polylingual Constitution,” because I point out that in some places the Constitution “is not speaking a legal language but the language of power—which is to say the language of politics.” He objects, saying that, according to Madison, “politics is fundamentally an argument about justice.” Once again, our disagreement is apparent, not real. For I was not saying that power is the totality or even the most important vocabulary in the language of politics (of course the end of politics is justice, as Madison argues so forcefully in Federalist No. 51). I was merely saying that when the Constitution is distributing powers between branches, that is the language of politics and not the language of law. (Arguably, law likewise adopts justice as its end, but still there must be something that distinguishes the two languages).

And for proof that there is no disagreement between us on this point, I could appeal to, oh, just about everything I’ve ever written on Madison or the Constitutional Convention. But perhaps the most apropos source would be my 2015 Constitution Day Address for the James Madison Program in American Ideals and Institutions at Princeton University, titled, “James Madison’s Constitution: In Order to Establish Justice.”

Finally, Mr. Samuelson wishes to point out that many modern historians do not practice history in the way that the Framers did—they would make a science of Clio’s art. Here, he is once again singing my song. In my original response to John McGinnis and Michael Rappaport, I had written that Madison’s mother tongue was politics “(although, as a renowned polyglot, he was also fluent in legalese and classical historian).” However, the editors at Law & Liberty did not appreciate the joke, and my slightly snarky allusion to the language of “classical historian” got changed to “classics” (a change that gave the phrase a different meaning, and not the one I had intended).

So you see, Mr. Samuelson, although ours is a relationship conceived in misunderstanding, our respective judgments about James Madison show promise of maturing into greater harmony.

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Lynn Uzzell
on June 26, 2018 at 11:29:31 am

Seems to me there's little disagreement between Samuelson's post and Uzzell's reply. Perhaps, Uzzell is alarmed/irritated by what seems to Samuelson merely a fact, the "... dispute between lawyers or law professors and historians over..." originalism. Only they can say.

But I'm aware of a "fact," and it alarms/irritates me: that the matter of constitutional originalism, the what, whether, why and how of it, has become increasingly abstruse, arcane and complicated since the legal academy took control of the debate to the increasing exclusion (voluntary or otherwise) of historians. That seems to me to be a bad thing for originalism and for the rule of constitutional law.

Speaking very generally (and acknowledging that there are thousands who do not fit this bill,) still, I suspect that one would get little argument these days from conservative academics and intellectuals and commentators and judges that the lawprof's often miss the matter of the well-being of our governance or get it wrong or ideologize it or twist it to serve their parochial interests. And the governance of the lawprof's (the ABA and AALS) is so intellectually unprincipled, careerist and inward-looking and seems so unmindful of the public destruction they wreak that I am loathe to have the lawprof's monopolize the debate over originalism.

http://www.libertylawsite.org/2012/01/03/schools-for-misrule-legal-academia-and-an-overlawyered-america/

http://www.libertylawsite.org/2018/06/25/law-schools-need-a-new-governance-model/

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Pukka Luftmensch
on June 26, 2018 at 12:27:24 pm

I wrote a lengthy comment about Samuelson's commentary and Uzzell's reply only to have my effort "blocked" (because it's critical of the legal academy? and law professors?) or eaten by the cookie monster.

I've complained about both before on this site. Others have complained, as well.
"It's beginning to look a lot like" YouTube.

Or I'm Commander Queeg looking for my lost strawberries:)

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Pukka Luftmensch
on June 26, 2018 at 15:21:19 pm

Richard Samuelson wrote: "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 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.”

It should be noted that the Declaration of Independence, in declaring that governments are instituted among men to protect unalienable rights, and then proceeding to an enunciation of the right of revolution, is echoing Francis Hutcheson. Furthermore, the Declaration of Independence, in associating protection of natural rights with the pursuit of happiness, is echoing Burlamaqui. (An article submission with sources for these statements has recently been revised and resubmitted.)

For whatever it's worth, Hutcheson and Burlamaqui, leading writers on moral philosophy and natural law, were publicly singled out as "approved writers" in Massachusetts in 1761.

As I have discussed around here previously, to understand the collective mind of the Founders (including of course their thoughts on justice and human nature), one must deal with Hutcheson, Burlamaqui, and Vattel.

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John Schmeeckle
on June 26, 2018 at 22:33:11 pm

I want to witness radical reform to establish the civic agreement that is offered in the preamble that was ratified in 1788. The preamble legally offers individual liberty with civic morality for willing citizens.

”Madison’s politics were more . . . fundamentally an argument about justice.” What justice? Another world’s justice? Civic justice? Human justice? I prefer “civic justice,” by which I mean individual citizens responsibly pursuing the happiness for their here and now such that fellow-citizens may do so too. That’s the unrecognized American dream: individual liberty with civic morality.

“. . . perfect justice and perfect knowledge of justice are not of this world.” This is a false premise founded on the assumption that there is another world. Each human has the opportunity to develop integrity and thereby perfect his or her life. The only knowledge-and-justice that pertains to humankind is of this world---the world wherein individuals live. The one who posits another world may either present the actual reality or continue the vain attempt to impose ungrounded propositions. But a better future is achievable and therefore may be adopted.

“[The] 1787 Constitution . . . became the supreme law of the land when the people, acting through ratifying conventions in [nine] states, ratified it. What did they ratify?” First, only 2/3 of 12/13 of the people’s representatives signed the 1787 Constitution. The signers of the 1787 Constitution broke at least two civic momentums: the people’s discipline according to theism and political power according to the Magna Carta. The people of nine states ratified radical termination of England’s Blackstone and Canterbury in order to establish a new country.

Starting in 1788, willing citizens claimed the opportunity for collaborative discipline for stated purpose and goals and authorized a limited nation to serve them in their states. Each citizen may choose to trust-in and commit-to the preamble’s agreement or reject it. On the preamble’s morality individuals choose between: civic citizen and dissident. When civic immorality is discovered, the civic citizens ratify the constitution to develop a civic culture. Professor Samuelson writes, “If the ratification process had meaning, it must be the case that there is a fixed meaning of the constitution the people ratified.” The people ratified their intent to amend the constitution to correct immorality discovered therein.

The ideas that political factions use to distract the individual and thus the people from civic self-discipline are abundant. Samuelson regresses to 1776: “Governments are instituted among men to protect their rights, and ‘derive their just powers from the consent of the governed’.” Governance fails to appreciate the people’s amendments for self-discipline. Samuelson “rejected the very ratification process which is what made the Constitution the supreme law of the land.” The First Congress, under the people of ten states, bemused the people, instituting congressional “divinity,” by hiring ministers to serve Congress. Then, under the people of fourteen states, the First Congress imposed freedom of religion rather than freedom to develop civic integrity. Congress ratified the Bill of Rights in 1791.

Politically astute for his individual cause, Abraham Lincoln bemused himself with theism and historical revisionism. In his first inaugural address, he iconoclastically asserted that civic justice comes from the people (rather than governments or gods). He could have further promoted the preamble’s promise by saying, at Gettysburg: Three score and fifteen years ago . . . civic discipline “of the people, by the people, for the people, shall not perish from the earth.” Instead, Lincoln expressed a personal dream not unlike consent of the governed. The people disciplines itself according to the-objective-truth.

Originalism oppresses subsequently discovered civic morality. In 1941, Albert Einstein expressed that civic morality comes from the-objective-truth or actual reality; from discovery, integrity, and fidelity, rather than from lies, reason, emotions, passion, doctrine, or study. Science studies to discover the object.

I write not to dismiss “the founders” or Madison or Lincoln or Samuelson but to promote the signers of the 1787 Constitution and the parade of people who promote civic morality, as Einstein did 2400 years after Agathon. Agathon informed us that a civic citizen develops integrity and fidelity and in thought, word, and action neither initiates nor tolerates harm to or from any person or institution.

In the 230 years since the USA was established, political regimes have worked to distract the people from the civic agreement that is offered in the preamble to the 1787 Constitution. The preamble, the first legal statement in the constitution, may be taken seriously by at least 2/3 of the people, and if so, an achievable, better future will develop, without delay.

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Phillip Ray Beaver
on July 04, 2018 at 19:30:49 pm

Madison's view that the Constitution's meaning should be the original publicly understood meaning of its text is the only way to preserve the rule of law. If the founding charter's meaning must be altered, that should be by the democratic political process set out in the document itself, not the diktat of a few elitist judges.

Originalism's true problem, which Professor Samuelson correctly identifies, is that the amendment process created in 1789 has now become a barrier rather than the avenue it was supposed to be for updating the Constitution. Procedures and approval thresholds which made sense in a nation of 12 states in an age of horse and sail for 3 million people are no longer working for a nation of 50 states with more than 100 times its original population and modern travel and communications.

The primary task confronting originalists today is not fine tuning our academic arguments as engaged in above by Professors Uzzell and Samuelson. Rather, originalists should focus on reforming and updating Article Five so that constitutional change can again come from the people rather than the judiciary. A few content-neutral adjustments, such as allowing amendments to be initiated by states without having to pass through the archaic mechanism of a convention, could re-invigorate the amendment process so that the Constitution can be changed the way Madison thought proper - amendment by the people acting through their legislatures rather than by unelected and unaccountable judges.

See http://www.amendmentamendment.com

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James Lucas
on July 08, 2018 at 21:07:11 pm

1) It's not Mr. Samuelson, it's Dr. Samuelson.
2) Like you, he is a professor of Arts & Letters; and History, like Political Science, is a matter of interpretation, and he is entitled to his opinion as much as you.
3) He got his M.A. & PhD from U of Virginia, but fortunately didn't have you.
4) You look like Trump in your picture with your arms crossed.
5) He is a stickler about spelling, grammar, and punctuation. You should go back and check your own.

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Charlotte Lee
on July 09, 2018 at 08:12:38 am

It would seem that Charlotte Lee is not a stickler about appropriate manners, common decency and a civil tone.

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John Schmeeckle
on July 09, 2018 at 09:05:31 am

Oh Gawd, Charlotte Lee looks like another one!
I won't get sucked in this time.

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Pukka Luftmensch
on July 10, 2018 at 13:00:23 pm

James Lucas, thank you. I will learn about “the amendment process created in 1789.” I would appreciate knowing the specifics you referenced. I want to suggest accelerated (even if culturally shocking) relief from your verifiable concerns about 1789. American can establish civic integrity, and the time is ripe.

The First Congress was, understandably, the most disastrous, because it bemused and obfuscated the promises of the preamble from then until 2018. The preamble is falsely labeled secular: It is neutral to religion.

Since the articles of the 1787 Constitution are amendable, the only originalism that matters is the preamble itself. Yet I paraphrase its essence so as to conform to my commitments to each integrity and the people’s children. I propose to collaborate for integrity rather than the Union and emphasize that “posterity” includes the children, yet preserve the original words.

The preamble remains the legal, potential termination of both English common law in Canterbury partnership and the actual dis-establishment of the Confederation of the thirteen free and independent states. Furthermore, it is the legal promise of self-discipline of by and for willing people. Civic people accept the agreement to collaborate for statutory justice according to the purpose and goals stated in the sentence, the offered agreement. Abraham Lincoln, in his Gettysburg address, did not observe that no individual wants governance, but most people want self-discipline.

The common term “founding fathers” may be avoided, so as to focus on the signers of the preamble and articles that follow. The signers made the articles amendable. The signers were only 2/3 of the delegates for 12 of the thirteen states. Among the dissenting politicians, some wanted USA discipline by the states rather than by We the People of the United States. Some politicians wanted factional theism, traditionally used in Machiavellian honesty to bemuse the people.

The USA was established on June 21, 1788, by the people’s representatives of 9 of 13 states. Operations began on March 4, 1789 with 10 states, 3 remaining in the dis-confederated, free and independent status. Then, 99% of free citizens on the eastern seaboard were factional-American Protestants and 5% could vote. During the First Congress, dissenters from the inclusive civic discipline that is offered in the preamble re-established Blackstone but with American factional Christianity. Congress would be as divine as the Parliament. Today, there are 50 states (and 6 territories). Only 14% attend the original Christian factions, and 100% of non-felons may vote.

To this day, the combination of indolence by most people and bemusement created by America’s church-state partnership deadlock civic integrity. Because of Chapter XI Machiavellianism, the civic discipline needed for individual liberty with civic morality, the tacit American dream, has never activated. America can impartially empower citizens to enjoy individual liberty with civic morality.

American political regimes have subjugated to bemusing idealism derived from Magna Carta, while the people have experienced the erosion of liberty the church-state partnership has wrought. In 2018, England experienced Canterbury irony with the newest American faction, African-American Christianity; https://www.wsj.com/articles/dr-kings-radical-biblical-vision-1522970778. It is appropriate and essential for every American citizen to consider the preamble’s agreement as an alternative by which to collaborate for civic integrity, preserving religious hopes in the privacy of adult pursuits.

To imagine a people’s convention dedicated to re-establishing process for the people to amend the constitution, one may develop a strategy for establishing civic integrity. The first element might be to admit to and celebrate the legality of the preamble. Perhaps recognize the preamble’s intent for civic discipline. Perhaps admit that every human being has the individual power, the individual energy, and the individual authority (IPEA) to develop integrity or not. Perhaps consider collaboration to discover and utilize the-objective-truth rather than conflict for dominant opinion as the human quest. I imagine 75% collaboration would be required, and the preamble offers hope.

With the (expected) confirmation of Brett Kavanaugh as the next Supreme Court justice there has never been comparable opportunity for 1) originalism according to the preamble with 2) collaboration for the-objective-truth to be used to establish civic integrity in the USA. Initiative and creative thining by the writers in this forum would be critical for accelerated reform.

I write to learn and would appreciate comments that are proprietary to We the People of the United States rather than dissidents.

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Phil Beaver
on July 10, 2018 at 13:06:16 pm

Sorry. That's "Americans can establish . . ."

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Phil Beaver
on July 10, 2018 at 14:42:08 pm

My writing in the fourth paragraph is egregious. Sorry. I revised it:

The preamble remains legal, both in 1) the U.S. proposal to terminate English common law in Canterbury partnership and 2) the actual dis-establishment of the Confederation of the thirteen free and independent states. Furthermore, it is the legal promise of self-discipline of by and for willing people. Civic people accept the agreement to collaborate for statutory justice according to the purpose and goals stated in the sentence, the offered agreement. Abraham Lincoln, in his Gettysburg address, did not observe that no individual wants governance, but most people want self-discipline. Citizens who don’t want civic discipline beg subjugation to actual reality including statutory law.

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Phil Beaver

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