My last post
introduced the Jefferson-Madison debate over whether the original Constitution creates “a debt against the living
,” and whether the present generation can discharge that debt only through originalism — by adhering to the original meaning of the Constitution — or by allowing judges to change the Constitution’s meaning over time. This question, which is the subject of my new short introduction
to originalism and the Founding, has dramatic implications for today. As we saw with the confirmation hearings of Justice Neil Gorsuch, some
believe that originalism means “justice itself is at stake,” and others
more soberly explain that originalism has been “the settled view of legal interpretation” since the Founding.
Indeed, originalism makes intuitive sense. Originalists believe that we interpret law the same way we’d interpret any communication intended as a public instruction — for example, the way we’d interpret a fried chicken recipe from 1789. How would chefs trying to recreate the recipe interpret the instructions? They wouldn’t use any secret meaning. Nor would they use any modern meanings or preferences. If we wanted to know what the recipe actually meant — that is, if we wanted to know what kind of fried chicken it actually would have created in the world — we’d have to interpret its words with their original public meanings.
There’ll of course be some ambiguities and other indeterminacies. The recipe might say add pepper “to taste.” What does that mean? We may be able to refine our understanding by looking to various tools; perhaps there was a public debate among chefs over what “to taste” meant. Or maybe it’s really up to modern-day fried chicken eaters to decide how much pepper to add. But although the recipe may be unclear at times, the method is clear: if we want to understand what kind of effect the recipe was to have in the world, we need to interpret it with its original public meaning.
Constitutions are no different. After all, our Constitution is also a recipe — it’s a recipe for government. Whether it’s still a good recipe, to be sure, is a question we must answer for ourselves in every generation. To claim that it is still a good recipe thus requires a defense of the Founding. But this is a task for which modern-day conservatives are often ill equipped. We hear constantly that our Founders were all white and racist — how can we possibly respond to such a charge?
Of course, many of them were racist, and they did exclude women and they did own slaves. But these are not the reasons we celebrate the Founders. After all, they didn’t invent slavery, nor did they invent the exclusion of women. Their achievement was different — it was to write for the first time in a foundational national document that all men are created equal. And as a result of that writing, half the states abolished slavery between 1776 and 1789, the year the Constitution was adopted. Their achievement was framing a Constitution that abolished property requirements, titles of nobility, and hereditary privileges.
And through ingenious mechanisms — the separation of powers, checks and balances, federalism, the representative process, the enumeration of powers, and the bill of rights — the Founders also carefully balanced the competing ends of a free constitution: the need to create a regime of self-government, while maintaining protections for our natural liberties. The Constitution our Founders gave us was remarkably successful in balancing these ends.
We have progressed since the Founders’ time, of course. But we’ve done so largely because we stand on the shoulders of giants.
Ilan Wurman is the author of "A Debt Against the Living: An Introduction to Originalism." A nonresident fellow at the Stanford Constitutional Law Center, he writes primarily on administrative and constitutional law. You can follow him on Twitter @IlanWurman. To read more of his reports — Click Here Now.
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