The Constitution is more than the supreme law of the land. It’s the supreme political weapon. If you oppose an idea–say, censure of the president or the effort to establish “findings of fact”–just damn the idea as “unconstitutional” to silence the opposition. Whatever your opponent’s politics, he’ll have to. Constitution worship extends beyond politicians to judges–notably Robert Bork and Chief Justice William Rehnquist–who embrace the, the belief that we should obey the Constitution’s meaning as intended by its framers.
The problem with all this veneration is that Americans quarreled openly about what the Constitution meant when it was adopted. Few thought it unassailable, and not even its authors claimed that their views should be fixed for eternity. So how did the Constitution become sacred? And when did judges decide they must recover its “original” meaning?
T he Constitution grew out of a convention held in 1787 by a cabal of elite politicians, including James Madison and Alexander Hamilton, who decided that the nation’s founding document, the Articles of Confederation, was too weak to hold the. But many citizens eyed the Constitutional Convention of 1787 warily, worrying that a strengthened federal authority would metamorphose into precisely the sort of tyranny they had just toppled. Patrick Henry said he “smelled a rat” and stayed home. Such self-selection screened out critics so that those who gathered agreed on most key questions. Contrary to myth, the men who would become known as the Founding Fathers spoke for no cross section of American opinion. One state, Rhode Island, wasn’t represented at all.
The framers built their Constitution on shaky ground. The Articles of Confederation explicitly stated that revision required the consent of every state, but the Philadelphia conventioneers, doubtful they’d achieve unanimity, lowered the threshold to nine of 13 states–on no authority but their own say-so.
To placate skeptics, supporters emphasized not the glory of the new Constitution but its imperfections, promising it would be improved over time–with the Bill of Rights as a down payment. (Even then, North Carolina and Rhode Island didn’t ratify until after George Washington had been sworn in as the first president.) In No. 38 of TheFederalist Papers–a series of editorials that Madison, Hamilton, and John Jay wrote to sell the Constitution–Madison opined: “It is a matter both of wonder and regret, that those who raise so many objections against the new Constitution, should never call to mind the defects of that which is to be exchanged for it. It is not necessary that the former should be perfect; it is sufficient that the latter is more imperfect.” In Federalist 85, Hamilton added, “Time must bring it to perfection.” Far from sacrosanct, the Constitution was billed as a work in progress.
Only after the new government took over did Americans feel a need to suppress the document’s flaws. Their first government had failed, and it remained uncertain whether the fragile new one could withstand challenges to its legitimacy. Historians began to rewrite the saga of America’s founding, now casting the Constitution as its inevitable climax rather than as the sharp turn in the road it really represented. George Washington’s Farewell Address of 1796 began the practice of using religious language to describe the document, as he shared his wish that “the Constitution be sacredly maintained.” John Quincy Adams’ Inaugural Address 30 years later completed the apotheosis. “Administered by some of the most eminent men who contributed to its formation,” Adams said, alluding to his own father, “… it has not disappointed the hopes and aspirations of those illustrious benefactors of their age and nation.” He went on to deliver a veritable paean to the piece of parchment.
T he framers’ opinions, now widely considered the keystone to interpreting the Constitution, traveled a similar path to legitimacy. Ironically, the doctrine of original intent was itself not part of the framers’ original intent. “As a guide in expounding and applying the provisions of the Constitution,” wrote Madison, the document’s primary author, “the debates and incidental decisions of the Convention can have no authoritative character.” Though he had taken extensive notes throughout the Philadelphia convention, Madison never relied on them to buttress any constitutional arguments he made, whether as congressman, secretary of state, or president. (The notes weren’t even published until 1840.) Others shared this aversion to referring to the convention proceedings because, it was felt, each generation had to make sense of the Constitution for itself. Similar practices favored by originalists today, such as appealing to the authority of The Federalist Papers.
When did Supreme Court justices and other constitutional interpreters began appealing to the framers’ original intent? Historian Leonard Levy argues that only with the Supreme Court’s notorious Dred Scott decision of 1857 was the doctrine of originalism codified. In that decision–the first in 54 years to rule an act of Congress unconstitutional–Chief Justice Roger Taney wrote that nothing “should induce the Court to give the words of the Constitution a more liberal construction … than they were intended to bear when the instrument was framed and adopted.” Of course, Dred Scott, which ruled that blacks, whether slave or free, couldn’t be citizens, came to be condemned not just as racist but as a quintessential example of tortured reasoning in the service of a judge’s personal prejudice–precisely the kind of jurisprudence that originalism’s advocates claim it alone can avoid.
This argument–that judges only use originalism to dispute decisions they don’t like–is as compelling a reason to distrust originalism as any historical reason. As Levy notes, when judges use history, it’s typically after they’ve made up their minds on how they want to rule. “The Court resorts to history for a quick fix, a substantiation, a confirmation, an illustration, or a grace note,” he writes, “it does not really look for the historical conditions and meanings of a long time gone … to decide a case in one way rather than another. The Court, moreover, cannot engage in the sort of sustained historical analysis that takes professional historians some years to accomplish.” It would be nice to believe that originalists really apply their doctrine without first deciding the case on political grounds. And it would also be nice to believe that every Republican truly thinks censure–and every Democrat thinks a finding of fact–would be that worst of all possible things, unconstitutional.