Originalism may well include some consideration of consequences, but in a disciplined manner that prevents justices' values from driving the process.
In this, its centennial year, Charles Beard’s 1913 An Economic Interpretation of the Constitution of the United States retains its hold on both the publication market and, at least in certain circles, the popular imagination. Its claim that the Founders were possessive aristocrats out to protect the property of the privileged has, to be sure, been demolished in the scholarly literature, most notably by Forrest McDonald. But it may be time for those who respect the Framers to acknowledge at least one deep vein of truth in Beard’s thesis and reply with an even deeper one. Call it “the Seinfeld defense”: Yes, they wanted to protect property—not that there’s anything wrong with that.
The idea that the Founders had to be redeemed from Beard’s charge has so framed the response to the Progressive historian that the charge itself has been too little examined. But while Beard’s assessment of the personal economic stakes of the Philadelphia delegates was, as McDonald and others have shown, mistaken, his deeper point cannot and indeed ought not be dismissed: One purpose of the Philadelphia project was the protection of property.
To be sure, Beard’s errors are legion. They are theoretical, not just historical. He claims that the “economic corollary” to Madison’s political thought is that “[p]roperty interests may, through their superior weight in power and intelligence, secure advantageous legislation whenever necessary, and they may at the same time obtain immunity from control by parliamentary majorities.” This is patent error—Madison had in fact said property could be regulated even to prevent its excess accumulation—as is Beard’s imputation of judicial supremacy to Madison, and his mistaking of that doctrine for the proposed national veto over state laws.
Yet Beard’s assessment of the centrality of the economic dimensions of the Tenth Federalist is also essentially sound. Madison was acutely concerned with the violation of property rights in the states, even if his concern with paper currency was just as often its use to manipulate the poor as to defraud the rich. He and other delegates to Philadelphia had listed the protection of property as one of the essential reasons for the institution of government, as McDonald has emphasized. Beard’s error is not merely his conflation of economic interests, it is his underlying assumption—though it should be said he disclaims it under the banner of impartiality—that there is something inherently tawdry in the protection of property.
Beard counterposes the economic interests of the delegates to abstract theoretical motive. What he overlooks is the decisive role the protection of property played in republican theory as a bulwark against political abuse. Property provided a source of power independent of the sovereign, enabling the multiple ties of dependence whose necessity Bertrand de Jouvenel emphasizes.
Thus Governor Stephen Hopkins of Rhode Island in 1764: “For it must be confessed by all men that they who are taxed at pleasure by others cannot possibly have any property, can have nothing to be called their own. They who have no property can have no freedom, but are indeed reduced to the most abject slavery. . . .” Samuel West, preaching an Election Day sermon in 1776, noted the connection between property and personal independence: “But if [the British] have the right to take our property from us without our consent, we must be wholly at their mercy for our food and raiment, and we know by sad experience that their tender mercies are cruel.” Timothy Ford, writing under the pseudonym Americanus, similarly observed in 1794 that in the absence of protection for property, there would be no laws “but such as would authorize the lounging crew to prey upon the industrious.”
There were, moreover, legitimate questions of justice presented by the practices of abolishing debts by means of legislative fiat or inflating them out of existence with paper money. There is no particular reason one man ought to labeled covetous or greedy for wanting a loan he has made in good faith to another to be repaid. Nor can these economic disputes be seen as proxies for battles between rich and poor, since those attempting to manipulate their way out of debt were just as often the former. Property also plays a decisive role in the doctrine of subsidiarity, the idea that social problems ought to be resolved by the closest available social institution. Its exercise requires, in Hopkins’ terms, something to call one’s own rather than being dependent on the distant resources of the state.
None of this is to rehabilitate Beard from the errors that cause him to impute rapacity to the Framers. It is, however, to suggest that even the behavior of which he accuses them might not be altogether rapacious. To the extent he means to accuse them of exploiting the Constitutional process to protect their personal assets, he is clearly wrong. To the extent the indictment is that they wanted to protect property, the best defense may come from Jerry and George: Not that there’s anything wrong with that.
Economic Interpretation (New York: Free Press, 1968), 161.
 Ibid., 178.