The Framers/Justices Conflation

Recently, Justice Stevens gave a speech about Justice Scalia. At the end, Stevens relies upon an argument from historian Joseph Ellis that both Stevens and Ellis believe suggests that Thomas Jefferson was not an originalist. But as Ed Whelan points out, this is a misinterpretation. Jefferson writes:

Let us [not] weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs. Let us, as our sister States have done, avail ourselves of our reason and experience, to correct the crude essays of our first and unexperienced, although wise, virtuous, and well-meaning councils. And lastly, let us provide in our constitution [i.e. the Virginia Constitution] for its revision at stated periods. What these periods should be, nature herself indicates.

As the italicized portion suggests, Jefferson here is not suggesting that judges and other government officials should update the constitution through “interpretation.” Instead, he is arguing that Virginia should provide for a constitutional revision process, where a lawmaking body would change the constitution. This is the difference between constitutional amendment (advocated by originalists as the legitimate form of constitutional change) and judicial revision (condemned by originalists). As other evidence strongly confirms, Jefferson was an originalist.

It is true that Jefferson is suggesting that an old constitution be changed. But he is arguing it be changed through constitutional means. Thus, the mistake that Stevens makes is to treat the Court as if it were the legitimate source of power to change the Constitution. I suppose, given Stevens’ other views, this is not surprising. But as an account of Jefferson, it is a serious error.

Sadly this error of confusing the Court with the Framers is common. Another common example of the error involves the separation of powers. The Constitution separates the legislative, executive, and judicial powers. But a question that often arises is whether the Constitution employs a strict separation or a lenient one that allows departures from the separation of powers if Congress and Court believe it is reasonable to do so.

The constitutional text suggests that the separation is strict, since after all each of the branches is limited to exercising a distinctive type of power. The Congress is limited to legislative power, the President is limited to executive power, and the courts are limited to judicial power. It is true that the Constitution creates exceptions—for example, it gives the President the veto power, which is a legislative power—but those exceptions are stated expressly. Thus, the constitutional text separates powers strictly, but creates some exceptions.

Many Supreme Court justices, however, have refused to adopt this approach. They argue that the Federalist Papers acknowledged that the Constitution does not strictly follow the separation of powers. And therefore they argue that the separation of powers should not be interpreted strictly. For example, in Nixon v. GSA, Justice Brennan advocated “the more pragmatic, flexible approach of Madison in the Federalist Papers,” citing to Madison defense of the Constitution’s departures from Montesquieu’s strict separation of powers. But this is a mistake. The Federalist Papers acknowledge that the Constitution did not follow the separation of powers, but they do so by referring to the explicit exceptions in the Constitution. There is no suggestion that additional exceptions should be recognized by the courts.

This mistake is the same type made by Justice Stevens. That the Framers of the Constitution could make exceptions to the separation of powers in writing the Constitution does not mean that the Court should recognize additional exceptions when interpreting the Constitution. Yet, that is what the Court often does. The Court assumes that the defense of the Framers’ actions applies to them. But despite their pretentions, the justices are not the Framers.