What Would Madison Think of Originalism? Depends When You Asked Him | History News Network
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Donald J. Fraser has spent a lifetime working in a variety of capacities in government. Fraser holds a bachelor's degree in political science and a master's degree in public policy and administration and currently teaches history through U.C. Davis's Osher Center. He is a regular contributor to the History New Network and the author of The Emergence of One American Nation and the The Growth and Collapse of One American Nation.
The Supreme Court seems poised to overturn Roe v. Wade, an almost 50-year-old precedent which established a women's right to choose to have an abortion. Abortion is an issue fraught with moral implications and perhaps the most personal decision a woman can make. But my concern in this article is with the unraveling of precedent based upon a judicial philosophy known as originalism. In July of 2018 I wrote an article for the History News Network about the dangers of originalism. If the court overturns Roe, those dangers will have come to fruition, potentially endangering rights for women and minorities that have evolved since the Constitution was written and amended.
By way of background, Justice Alito, in his draft decision, wrote that "the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision." Yet many powers and rights are not mentioned in the Constitution, yet have a long history of constitutional protection. Programs like social security and Medicare are nowhere mentioned in the Constitution, nor is the right to privacy or to marry whom one chooses, yet each of these powers and rights has been found to be constitutional. One of our founding fathers, James Wilson of Pennsylvania, had grave concerns about adding a bill of rights to the Constitution. Wilson was concerned "that if the enumeration is not complete, everything not expressly mentioned will be presumed to be purposely omitted."
Alito himself acknowledges the problem, writing that unenumerated powers or rights must be "deeply rooted in this nation's history and tradition." Yet in Alito's mind, 50 years of history are not sufficient to establish abortion as an implied right. Originalists like Alito rely heavily on historical analysis, yet they shade history to find the results they prefer. Others have written of the problems with Alito's historical analysis, including Aaron Tang at the University of California Davis and Peggy Cooper Davis of N.Y.U. Many scholars call Alito's analysis "law office history" which "assumes that the suppression of evidence harmful to your client is not only permissible but professionally obligatory," as Joseph Ellis has written.
What is originalism? It is the idea that "the Constitution should be interpreted in accordance with its original meaning---that is the meaning at the time of its enactment," according to the Center for the Study of Originalism at the University of San Diego. Originalism sounds like it dates back to our founding but in fact it is a recent concept introduced in 1983. One of the major flaws of originalism is the idea that there was one meaning of the Constitution at the time it was written or amended. But this is clearly false. Rather, the founders had disagreements among themselves over its meaning. John Marshall, the great Chief Justice of the Supreme Court, wrote that "historians can never forget that it is a debate they are interpreting."
The inability to recognize the extent to which the Founding Fathers argued among themselves is a major flaw in the conservative case for originalism since it is dependent on the theory that people in the 18th century shared a common interpretation of the Constitution. In fact they did not, as one of the earliest debates over the meaning of the Constitution shows. That debate and its later aftermath also shows that James Madison, known as the Father of the Constitution, allowed precedent to change his original understanding of the Constitution.
In December of 1790, Treasury Secretary Alexander Hamilton proposed the creation of the Bank of the United States. Madison took the position that Congress had no power to charter a bank since no such power was enumerated in the Constitution. President Washington was confronted with a major dilemma, with two of his primary advisors now at odds. Hoping to find an answer, he asked Secretary of State Thomas Jefferson and Edmund Randolph, the Attorney General, to provide their opinion on the constitutionality of the bank. Both sided with Madison, in what has become known as the strict constructionist view. Washington then provided Jefferson's opinion to Hamilton, who put forward what one of his biographers has called "the most brilliant argument for a broad interpretation of the Constitution in American political literature." Hamilton posited that the necessary and proper clause gave Congress the means to carry out all of its ends, even if the specific power was not listed in the document. Ultimately Congress passed and the president signed the bank bill.
In the aftermath of the War of 1812, Madison changed his mind about the need for a national bank. In a message to Congress in 1815, Madison explained that he no longer opposed a national bank, since "repeated recognitions…of the validity of such an institution, in acts of the legislature, executive, and judicial branches of government" and also by "the general will of the nation" had remove his doubt about whether the bank was constitutional. As the Madisonian scholar Jack Rakove has written, "Madison thus allowed precedents set since 1789 to revise his own original understanding of the Constitution."
Essentially Madison came to his conclusion not only because the bank had existed for so long but also because the public had come to accept it. One could say that Madison was, in fact, an adherent of the concept of the living Constitution, in which the meaning of the document evolves over time as standards of justice change. Jefferson too thought it ludicrous that one generation should be beholden to another for its basic laws. "We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain under the regimen of their barbarous ancestors." The living Constitution is an approach grounded in precedent, "which allows us to meet the demands of today, not force us to follow the commands of the long-dead Founders," as the constitutional scholar David A. Strauss has written.
The mantle of originalism allows judges like Alito to pretend that their interpretation of the Constitution is grounded in an objective standard, but as we have seen, this is historically inaccurate. Instead, originalism represents a way to overturn longstanding precedents which many in the conservative movement detest. The use of originalism not only threatens a women's right to choose an abortion, but could ultimately move the nation backwards, taking away now long-established rights that could include gay and interracial marriage, contraception, even the right to privacy. We would be better served to follow the approach of James Madison.
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No, it's a flaw for re-interpreting the Constitution instead of amending it.
It's dependent on the theory that when the Constitution needs amending, the people in the 21st Century will do it.
Originalism is a ploy by conservative Justices to impose a regressive viewpoint on to the Supreme Court.
Originalism is not the issue here. It's about wrongly decided precedents.
I made it halfway through the second paragraph before I had to give up this history major's attempt to explain a legal theory. The author is either too dishonest or ignorant to bother with. Off the bat, he immediately conflates a "right" to an abortion with the Court holding that legislation was Constitutional. That's a two plus two equals five level of mistake. Finding something is a right means the Constitution mandates it. When the Court holds legislation Constitutional it means the legislation (social security) is within Congresses powers to act or not act, as it chooses. There's no Constitutional mandate or right involved.
How can vague rights be mandated?
The Constitution is whatever the Supreme Court at the time says it is. The specifics of 1789 are outdated and must be continuously brought up to speed.
James Madison concluded that events in the time period between 1789 and 1815 changed his mind about the constitutionality of a national bank.
The only people who believe we MUST adhere to "original intent" (which is an interpretation of the original text in itself) are conservative justices who want to prevent change.
John, I'm still waiting for you to respond to my question, from one of your hundreds of "we need to misinterpret the constitution" pieces. Seriously. Under new definitions, the right to vote is easily translated as a grant or permit given by the federal government. Is that what you are after with all this, "understanding what the people that drafted the document thought isn't important" bullshit? Walk down the road in Birmingham Alabama, and ask 100 women if they'd like to see your spotted dick...
As far as Madison and Jefferson are concerned...both hated the idea of a central bank, because they thought it would wield too much power. (they were right, btw) Madison relented on his position when he saw, or perceived, that a national bank and a standard or uniform currency would keep the country out of financial ruin. The interesting thing here is that commerce power is expressed in the constitution, along with the ability to do what is necessary and proper to carry out the commerce power. The debate between Hamilton and Madison is coined as a debate between a strict textualists view vs. a broad or loose view. Granted, Madison did argue that the power to establish a national bank was not expressed. But, Hamilton's argument was grounded in the text. It simply becomes an argument over what is "necessary and proper." Fast forward a century, and we are pulling rabbits out of hats, talking about penumbra, and following the unworkable standard of "so grounded in tradition..."
Odd. Here is Madison's January, 1815 message to congress.
The author of the seeded article is twisting Madison's words. Clearly, Madison didn't say he changed his damn mind. He basically said we aren't going to go the question of constitutionality, because the proposed bank doesn't appear to be able to fulfill the stated purpose. Madison vetoed the bill. This guys acts like he signed it with his dick. Is it ironic, or something else, that the bitch bitching about "originalism" is twisting the shit out of history, to distort it to his own political wants? I think not.
Spoken like a true believer in the divine right of kings. Judges sympathetic to James Stuart adopted your view about laws and how they should be interpreted and began ignoring the text to interpret them in accord with the King's wishes. British subjects argued that laws with no fixed meanings provide no protection to the populace and are simply a tool of tyranny. They rebelled and deposed James over his assault on the law.
Although, I do find it amusing that you've undercut any objection to Dobbs with this argument. If you actually believe what you wrote, how can you object to any ruling the Court makes?
But of course, progressives only care about results and forcing their values on the country. If it can be served by "original intent" they will live and die by the text of a law or the Constitution If original intent cuts against them, it's the worst thing in the world.
I honestly thought the Donald Trump experience would awaken some liberals eyes to the dangers of believing laws have no fixed meanings and can be "interpreted" to mean the exact opposite of what they say. YOu'd think, if they actually believed Trump to be the danger they claim he is, they'd want to fortify our legal system against arbitrary and capricious results that depend on nothing more than the personal moral view of a justice. But instead they continue to embrace a theory beloved by totalitarians and dictators.
ho believe we MUST adhere to "original intent" (which is an interpretation of the original text in itself) are conservative justices who want to prevent change.
The only people who believe in a magically changing Constitution are proto totalitarians who want to use the unelected branch of government to force the changes they can't make by convincing the people to do so democratically.
In the leaked Alito opinion he claims that only non enumerated rights that have been long established by national tradition can be considered constitutional.
Who died and made him God?
There is nothing in the Constitution that enables him to put forth such an opinion.
That's not Alito claiming it, that's precedent. he simply applied a established test.
The hypocrisy is strong here. Consider the lead sentence of this seed.
Perhaps a slip by the author, though I doubt it. Funny he chose to say that the Roe Court "established" a right, don't you think? In the proper order of things, the Court would confirm that a right exists, and that it is protected. Not the Roe Court though, it established rights. As used by the author, and as practiced by the Roe Court, establish means to bring into existence. Ironic that you are alleging that nothing in the Constitution enables the Court to put forth the presumed opinion that would overturn a previous decision of the Court, which is the very opinion that created the right...Who died and made the Roe Court God?
Again, this article is trash. Madison vetoed the Bill, but the author tries to spin it to claim that Madison was a staunch textualist that had a change of heart. Uh no.
As an aside. How do you square your question to Sean, with your position that the original intent of the framers is irrelevant? If the latter was truly the case, then it would be a free-for-all at the SCOTUS, making your question to Sean complete and total BS. I know the answer to my question already. You don't like the consequences of your position, unless they favor you, but presume that the consequences of your position will always favor you, which is the only logical reason one would promote that position in the first place. On full display here is exactly why original intent, or understanding, is necessary. You and the author have no problem, nor would anyone sitting on the Court with your view, with revising the Constitution to suit your current whims; but, apparently a Supreme Court opinion is chiseled in marble?
The crux of originalism (mentioned in the seed) is the 10th amendment to the Constitution.
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people"
The original intent of the Constitution and the first ten amendments was to limit the authority (and power) of the Federal executive, legislature, and courts. The first ten amendments (known as the Bill of Rights) isn't only about the rights of individuals. The Bill of Rights also protects the rights of states by limiting the authority and power of the Federal government.
The great experiment in democracy embodied by the Constitution is decentralized government. Decentralized government was something new and untried in history. The Constitution ensured that state governments have as much authority as does the central government. That was the original intent when the Constitution was ratified.