It has become fashionable to argue that we are no longer bound to the Constitution — at least not to the Constitution of our Founders.
“Why do we care about the Framers of the Constitution?” asks law professor David Strauss of the University of Chicago. The Constitution “was the product of the Framers’ times and the Framers’ sensibilities. What possible reason can we have for allowing its provisions to rule us today?” Paul Brest, a former dean of Stanford Law School, similarly wrote in a famous article, “We did not adopt the Constitution, and those who did are dead and gone.” And Georgetown law professor Louis Seidman wrote in The New York Times only a few years ago that we should “give up on the Constitution.”
Many of these academics rely on a famous letter from Thomas Jefferson to James Madison, in which Jefferson wrote that “the earth belongs to the living,” that “the dead have neither powers nor rights over it.” This letter from Jefferson is well known: it is often quoted for the proposition that we should not be bound by the “dead hand of the past,” that a constitution that is not a “living, breathing document” is not a legitimate constitution worthy of our obedience today.
Few, however, have heard of James Madison’s reply to Jefferson, in which Madison made a powerful case for constitutional obedience: “If the earth be the gift of nature to the living,” Madison wrote, “their title can extend to the earth in its natural state only. The improvements made by the dead form a debt against the living, who take the benefit of them. This debt cannot be otherwise discharged,” Madison continued, “than by a proportionate obedience to the will of the Authors of the improvements” — by a kind of originalism.
Who’s right? Thomas Jefferson, or James Madison? I shall take up that question — or at least I’ll sketch a response — in a handful of subsequent posts. (The interested reader can also take a gander at the new book mentioned below, on which these posts are based.) But for now, let’s reflect on why “originalism” — the idea that we should interpret the Constitution with its original public meaning — matters.
Through non-originalist interpretations, modern courts often get the Constitution exactly backward. Precisely where the Constitution was supposed to be hard to change — where it defined what powers our government actors could exercise — the courts have made it all too easy for political arrangements to shape the constitutional requirements. (Think about the great scope of the federal government, and of the administrative state.)
And precisely where the Constitution was intended to make things easy to change — by leaving matters of moral and cultural values for the people themselves to decide — courts have made such commitments increasingly harder to change by entrenching particular values and viewpoints into the Constitution even though the Constitution does not seem to say anything about them.
If taken seriously, originalism may require us to rethink the broad scope of federal power and the wide use of administrative power. We may have to reconsider as a constitutional matter the prophylactic rights we give to criminal defendants. (Congress can of course grant these rights through legislation, and probably should.) And we may need to reinvigorate property and contract rights. Taken all the way, originalism can work important transformations in the way we interpret the Constitution. And because President Trump will have the opportunity to appoint a number of federal judges, originalism will continue to matter a great deal.
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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