Articles of Distraction

[Angrboda]

The Supreme Court’s Originalists Are Fundamentally Wrong About History

Gienapp thinks all these theories are mistaken. Across all of these strands of originalism, he notes, the debate centers on questions of meaning: What does a given clause in the Constitution mean, and can we tell what it meant in the past? But Gienapp shifts our attention to a deeper, more metaphysical question: What kind of thing is the Constitution? Depending on what it is, it will hold different meanings. Think of an actor confessing to a murder on a stage. It means something different from a witness confessing to a murder in court, even if the words are the same, because plays and courtroom testimony are very different kinds of things.

Gienapp argues that originalists impose onto the founding their own modern picture of what a constitution is. Most originalists, he says, make three basic assumptions about what the Constitution is. First, they assume the Constitution is only the written text of the document. Second, they assume it has a fixed meaning, precisely because it’s written down. Third, they assume the Constitution is a law just like other laws, so its fixed meaning must be read the same way lawyers read other laws. All three assumptions, Gienapp contends, are wrong.

Start with the idea that the Constitution is only its text. Many eighteenth-century Americans would have been surprised. They thought a constitution was a mix of text and preexisting legal and political principles. Constitutional rights, for example, were preexisting. The text didn’t create those rights. It declared the rights that the people already had. As Alexander Hamilton put it, “The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature.”

Similarly, when it comes to the federal government’s powers, many founding-era Americans would not have focused, as courts do today, on the powers enumerated in the Constitution’s text. They would have focused on the idea of the social contract: the idea that human beings began in a state of nature but gave up certain liberties to form a political society. To determine what powers the federal government has, people would have asked what kind of political community created the Constitution—what underlying social contract authorized the government. If it was a nation that created the Constitution, the federal government would have all the powers of a national government. But if the Constitution was more like a treaty among the states, federal powers would be more circumscribed.

Interpreting the Constitution thus meant reasoning about the history and social structure of the political community and analyzing its proper form of government. As John Quincy Adams said in 1791, amid a debate with Thomas Paine, “The Constitution of a country is not the paper or parchment upon which the compact is written, it is the system of fundamental laws, by which the people have consented to be governed, which is always supposed to be impressed upon the mind of every individual, and of which the written or printed copies are nothing more than the evidence.” The Constitution wasn’t just a text. It was a practical “system” of self-government.

What about originalists’ second assumption, that the Constitution’s meaning is fixed? Gienapp argues that founding-era Americans thought its meaning was both fixed and evolving. James Madison, for example, wrote in The Federalist Papers in 1788 that “All new laws” are “more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.” He reiterated in 1819 that “it might require a regular course of practice to liquidate and settle the meaning of some” terms. Actual legal and political “discussions” and concrete political “practice” would work out constitutional meaning over time.

The idea that the Constitution was both fixed and evolving was not a contradiction in terms. Gienapp’s brilliant first book, The Second Creation, explored the idea of constitutional fixity in the 1780s and ’90s in depth. He showed that people like Madison would have agreed with the leading jurist Matthew Hale, who explained in 1713 that although “Use and custom” create “Variations” in the law, nevertheless, “They are the same English Laws now, that they were 600 Years since.” The law, Hale said, was like “the Argonauts Ship”—he meant the Ship of Theseus—which “was the same when it returned home, as it was when it went out, tho’ in that long Voyage it had successive Amendments, and scarce came back with any of its former Materials.” In the same way, the Constitution could simultaneously change and stay the same.

Finally, Gienapp argues that originalists wrongly assume the Constitution would have been seen as law like other laws. Many Americans, he says, would have seen it as “a people’s document, not a lawyer’s document,” and they would have thought it should be read in a less lawyerly and more popular way—especially by empowering the legislature, not the courts, to interpret the Constitution. It took years for Federalists like Chief Justice John Marshall to transform the Constitution into a legalized document. And even then, his political opponents pushed back, advancing an ­anti-legalist perspective. Thomas Jefferson, for example, argued in 1820 that making judges “the ultimate arbiters of all constitutional questions” was “a very dangerous doctrine” that “would place us under the despotism of an Oligarchy.” “The people themselves,” Jefferson said, were the only “safe depository of the ultimate powers of the society.”

This all amounts to a very different picture of founding-era constitutionalism than originalists portray. If the Constitution was widely seen as a mix of text and a fluid, popular set of principles and government practices—not as a fixed set of written-down rules—then interpreters who want to grasp the Constitution as it was initially understood must admit that doing so would require us not to limit the Constitution to what Justice Clarence Thomas calls “historically fixed meaning.” As Gienapp puts it, in the face of history, originalism “collapses under its own weight.”