What goes around comes around and around…
The Fetish, Farce and Fraud of Constitutional Originalism.
Burton Weltman
Braggart Big-Game Hunter: “I once shot an elephant in my shorts.”
Groucho Marx: “What was an elephant doing in your shorts?”
Apology: There is no shortage of essays on the theory of Constitutional Originalism. It is a silly theory that is being seriously espoused these days by several justices on the United States Supreme Court and that threatens to overthrow some two hundred years of pragmatic Constitutional interpretation. The response by reasonable jurists and lawyers has been prolific. My justification for adding to this plethora of responses is that I have personal experience which might be useful in making the case against the theory. In that vein, I hope this essay might help to clarify some of the issues and amplify some of the reasons for rejecting the ideas of self-styled Constitutional Originalists, particularly their hypocritical approach to the Second Amendment.
The Supreme Court Not-So-Merry-Go-Round.
People of my baby boom generation grew up in the midst of what was perhaps the most liberal Supreme Court in American history, the Warren Court of the 1950’s and 1960’s. From the early 1950’s to the early 1970’s, the Supreme Court issued a host of decisions expanding the rights of minorities, women and criminal defendants, including the seminal Brown v Board of Education decision in 1954 that promoted civil rights for African Americans. The Court also recognized a constitutional right of privacy and prepared the way for the historic 1973 Roe v. Wade abortion decision in favor of women’s rights.
As a result, people of my generation generally regarded the Supreme Court as a liberal-leaning institution. It was an orientation that was rued by conservatives who attacked the Court for its supposed left-wing political bias, even to the point of accusing Justices of being Communists. It was an orientation that was applauded by liberals who claimed the Court was merely helping to democratize American society. And liberals happily expected the Court to continue to be a guarantor of social reforms and civil rights for historically oppressed groups. As, much to their chagrin, did conservatives. Both sides were wrong.
The Supreme Court has not historically been a liberal-leaning institution. Historically, the Court has swung back and forth between conservative and liberal tendencies but has been conservative, and even extremely conservative, most of the time. Protecting the perquisites of private property and capitalist businesses, and limiting the powers of government, have generally been the priorities of conservatives who have generally controlled the Court. Theirs has been a narrow interpretation of the reach of the Constitution and the government to aid and protect people.[1]
Liberal Courts have generally focused on government’s responsibilities toward ordinary citizens, and, toward that end, have recognized an expansive and expanding role for federal and state governments. Theirs has been called a “Living Constitution” approach to the law, the idea being that the principles outlined in the Constitution should be broadly interpreted in consonant with the changing circumstances of the country.
Spurts of liberalism by the Court have been preceded and followed by longer periods of conservatism. The Court has generally lagged behind popular opinion and public officials in permitting progressive government action. As a result, the arc of justice at the Supreme Court has most often bent toward conservatism, but not always and not always in the same ways. Despite claiming to reflect a straight and narrow interpretation of the Constitution, judicial conservatism has taken different forms depending on the circumstances of the time.
During the first half of the nineteenth century, for example, as the federal and state governments in the newly formed United States were developing their respective jurisdictions, the Supreme Court was concerned with adjusting the respective roles of the state and federal governments and developing appropriate protections for private property. The Court headed by Chief Justice John Marshall during the early years allowed for a wider federal authority as against what were the more liberal state governments of the time. The following Court headed by Chief Justice Roger Taney allowed conservative state governments wider authority as against the more liberal federal government. Both allowed only limited governmental incursion on private property rights.
Justice Taney spoke for most Justices of the Supreme Court during his era when he said in the case of Charles River Bridge v. Warren Bridge (1837) that “the rights of private property are sacred,” albeit they are not without limits. In a conflict of priorities between private interests and public interests, Taney seemed to believe that the presumption should be in favor of the private interest unless it can be shown that the public interest clearly took precedence. A liberal Justice might reverse that equation, insisting that the public interest should prevail unless it can be clearly shown that the private interest should take precedence.
These efforts of the Supreme Court to protect private property and limit governmental authority culminated with the dreadful decision in the Dred Scott case. In this case, Justice Taney, speaking for the Court, held that since slaves were property and the interstate travel clause of the Constitution allowed people to take their property from one state to another, no state could prohibit slaves or slavery within its borders. A case of the tail wagging the dog, this decision effectively put an end to the freedom in so-called free states where slavery was prohibited, and essentially forced the whole country to accept slavery because southern states considered enslaved people to be property.
The Taney Court’s regime of favoring property rights over human rights, and of narrowly limiting the power of the federal government, came to a crashing end with President Lincoln’s Emancipation Proclamation during the Civil War. Using the President’s Constitutional war powers as his justification, Lincoln freed millions of slaves in one stroke even before the Thirteenth Amendment abolished slavery. It was the longest reach of the federal government and the largest confiscation of private property in history. Thereafter, the federal government became increasingly active in managing land and defining property rights in the country.[2]
Another turn toward judicial conservativism came during the late nineteenth and early twentieth centuries when the Supreme Court, strongly influenced by the Malthusian views of Justice Stephen Field, essentially read free enterprise and laissez-faire capitalism into the Constitution. In the name of protecting what Justices saw as the right of every individual to sell his or her labor as they wished, the Court came down on labor unions and against government regulation of wages and hours of work as infringements on the freedom of workers and business owners. In this same vein, the Court protected the rights of capitalists by invalidating state and federal government efforts at social and economic reforms and regulations.[3]
In the case of Lochner v. New York (1905), for example, the Supreme Court struck down a New York law that limited the number of hours a person could be made to work in a bakery. The Court held that the law was a violation of workers’ rights under the Fourteenth Amendment to sell their labor for as many hours as they wished. In his dissent in this case, Justice Oliver Wendell Holmes famously complained that“The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.” Spencer was a social theorist who coined the phrase “survival of the fittest” and whose book Social Statics was an argument for laissez-faire capitalism that was influential among late nineteenth-century conservatives, including Supreme Court Justices.
From the late nineteenth century to the mid-1930’s, a conservative majority on the Supreme Court struck down a host of state and federal statutes and regulations that attempted to moderate the ups and downs of the capitalist business cycle, make the economic system fairer to workers and small businesses, and otherwise reform and humanize the economic system. This trend continued into the Great Depression during the early 1930’s, when the Court struck down President Roosevelt’s first attempt at a New Deal.
But then, seemingly under the pressure of economic disaster, the Court turned around in the mid-1930’s and upheld Roosevelt’s second New Deal, which was by far the most ambitious effort to regulate the economy in American history. Constitutional restrictions by the Court on the federal government’s regulation of the economy have been minimal ever since. Until now.
Originalism and the Constitution: A Farce.
In recent years, conservative jurists and lawyers have developed a Constitutional theory they call Originalism. In their view, the Constitution should be applied as it was originally intended and understood by the authors of it. If the Founders did not specifically intend something, or even could not have intended it given the times in which they lived, the Constitution cannot be applied to that thing. Originalists see the Constitution as a rigid set of rules cast in stone, or what liberals would complain is a Procrustean bed that squeezes the life out of the document.
Liberals, in contrast, generally support a Living Constitution theory that insists the Constitution mainly consists of a broad outline of principles that can be applied in different ways as American society changes. It is a document, liberals claim, that invites revision through amendments but also through reinterpretation and interpolation as circumstances change. It is a charter for reform and reformers. Originalists demur.
Originalist theory is important because several Justices on the United States Supreme Court, possibly a majority, claim to be Originalists and have predicated their decisions about important issues upon this theory. The spread of this doctrine could have a major effect on Constitutional interpretation. In so doing, proponents of the theory generally call themselves conservatives, as does the mass media. But I believe that this is a significant mischaracterization and that they and their theory are best described as “radical right-wing” rather than “conservative.” The reason is simple. Originalists are not in favor of conserving anything.
Conservatives have historically been primarily concerned with the unintended consequences of social change. They are afraid that the good intended by a social change will be overwhelmed by evils that were unforeseen and unintended. So, they are in favor of either no social change or go-slow change. They want to make sure that we conserve the good in the present society and don’t ruin it in the process of trying to make it better. And this has generally been the gist of Supreme Court conservatism in the past. Conservative justices have generally aimed to preserve the status quo and put a stop to new laws and new programs that aimed to revise and reform society
Originalists, in contrast, are all for radical and extensive social change. Rather than being conservative, they are, in fact, revolutionaries, albeit reactionary revolutionaries who want to overthrow most of present-day American society and return to some imagined past. The present Supreme Court has already overturned Roe v. Wade which had been considered legally settled law for fifty years. This reversal of Roe was essentially predicatedon Originalist grounds in which the supposed intentions of the Founders override any questions of precedents, stare decisis, past practice or judicial decorum.
Nor do Originalists seem to consider or care about the social and political upheaval that might follow an Originalist reversal of what had been considered settled law. And several right-wing Justices have threatened more to come. Some have hinted that the whole regime of social and economic reforms from the New Deal onward could be ripe for reversal. They insist that what is unconstitutional is unconstitutional, no matter how long it has been accepted law. This is, of course, radicalism and not conservatism.
It is also nonsense and it is, frankly, hard to believe that presumably intelligent jurists and lawyers could seriously advance this theory. The Originalist interpretation of the Constitution is a farce on its face and on the facts. Let me count the ways.
First, Originalism places an impossible burden on judges. The theory requires judges to plumb the minds of the various authors of the Constitution’s various provisions to discover their specific intentions. This includes the eighteenth-century Founders of the Constitution and framers of the Bill of Rights, the nineteenth-century authors of the Fourteenth Amendment, and the authors of the many other Constitutional Amendments. It requires judges to be capable of discovering the beliefs of the various authors of the Constitution and its Amendments, and to interpret those beliefs within the intellectual culture of the authors’ times. It thereby requires judges to possess the knowledge and skills of intellectual historians, an expertise that very few judges have.
I am an intellectual historian. I spent three years in graduate school training to be an intellectual historian and then taught history for several decades. I have also written extensively on intellectual history. While I make no claims for the quality of my work, I can attest that working at intellectual history requires specialized knowledge and training. Very few judges, who may have extensive knowledge and experience in law, have that knowledge and training in history.
In justifying their rejection of the Living Constitution theory, Originalists claim that the theory is too loose and leaves too much room for judges to introduce political biases into their decisions. But this is a “do as I say not as I do” double standard. Originalist interpretations depend on how judges read history, which is a notoriously variable thing and will invariably reflect the judges’ political biases. In addition, while the Living Constitution theory requires judges to back their decisions with detailed evidence and reasoning about the circumstances that justify their conclusions, Originalists don’t have to justify theirs other than by claiming that they are following the Founders’ intentions. That’s a pretty loose method.
Second, the Constitution and most of the Amendments thereafter were the products of committee deliberations and compromise decisions which make it almost impossible to determine what were the authors’ specific intentions. The Constitutional Convention was itself a big committee and the Convention was broken down into smaller committees to deal with various subjects. The members of the Convention and the various committees had many different ideas about what should be in the Constitution. The product was the outcome of vigorous debate and compromise. Anyone who has any experience with committees knows that while the members may come to some agreement on the outcome, their reasons and reasonings will often be quite different.
I have personal experience along these lines. In addition to being a historian, I am also a lawyer and served for a time as counsel to the Judiciary, Law, Public Safety and Defense Committee of the New Jersey State Assembly. I can personally attest to the fact that the members of the Committee frequently approved bills with various members having different ideas of what the bills did. There was no single intention or interpretation. And this diversity of intents and interpretations was certainly the case with the members of the Constitutional Convention. We can see this in their sharp disagreements afterwards about what the Constitution meant. As a result, finding a single intent for many of the Constitution’s provisions is a fool’s enterprise.
Third, there is no statement of intent for the Constitution that might explain what the Founders intended. As a way of directing the interpretation of a constitutional provision or a statute, the framers will often include an explanatory statement of intent or a legislative history. The statement expresses the will of the authors. I drafted many such documents in working for the New Jersey Legislature. The framers of the Constitution did not do this. There is no such explanatory statement for the Constitution. And this seems intentional. The Founders deliberately left the document open to later interpretation and interpolation.
Fourth, the Constitution is a relatively brief document with, for the most part, relatively broad provisions. The constitutions of other nations are much longer and much more specific. The United States Constitution does have some very specific provisions, such as age requirements for holding various offices. So, it is clear that where they desired and could reach agreement, the Founders were capable of devising narrowly specific provisions. Which leads to the inevitable conclusion that where the Constitution’s provisions are broad, and are like an outline of principles that need to be filled in with interpretations and interpolations, the Founders knew what they were doing. If it is the Originalists’ goal to follow the Founders’ intentions, then it seems that a Living Constitution interpretation of the document is what the Founders intended.
The historian Garry Wills has well summarized the efforts of Originalists as “summoning the founders to testify against what they founded.”[4] Which is absurd.
Originalism and the Second Amendment: A Fraud.
Interpretations of the Constitution by self-proclaimed Originalists are often nothing of the kind. They may be original in the sense of being novel, but they have little or nothing to do with the original intentions of the Founders. They are merely right-wing political decisions using the pretense of Originalism as a fig leaf covering. The misinterpretation in recent years of the Second Amendment with respect to gun ownership by right-wing Justices is a clear example.
The Second Amendment has been the law of the land since 1791 but it was not until 2008, in the case of District of Columbia v. Heller, that a right-wing majority of the Supreme Court overruled previous decisions, historical evidence and common sense to proclaim that the Amendment guarantees a person’s right to carry a gun. In the fifteen years since the Heller decision, the Court has overturned almost every kind of federal and state gun control law as violating the Second Amendment.
Right-wing Justices have claimed that the Amendment gives individuals an almost absolute right to carry almost any kind of firearm almost anywhere they want. And has done so on ostensibly Originalist grounds as being the intentions of the Founders. But that conclusion just doesn’t fly. As self-styled Originalists, the Justices ought to be sensitive to the language of the Amendment and attentive to the circumstances in which the Amendment was adopted. They are neither. Their Originalism is a fraud.
As to the language of the Amendment. In order to reach their conclusion that the intent of the Framers was to guarantee the right of individuals to keep guns in their homes and carry them around in public, the Justices have to completely disregard the Amendment’s clear reference to a militia. This is one of the places where the Founders were clear and specific. Guns were for militias. But the so-called Originalists on the Supreme Court just trample over the Founders’ clear intention in order to reach their politically motivated right-wing conclusion.
As to the circumstances in which the Amendment was drafted. The right-wing Justices completely disregard the nature and extent of gun ownership in the eighteenth century. The idea that ordinary Americans in the late eighteenth century were concerned about the right to have guns in their homes and on their persons for self-protection is just plain wrong on the facts. Guns at that time were a particularly poor choice as a means of self-protection. They were cumbersome, inaccurate, and dangerous to their owners.[5]
Most guns at that time were muskets that were heavy and clumsy to carry and to shoot. They also required the bearer to carry a bag of heavy shot and gunpowder. This was not something a person would want to carry around on a regular basis. Muskets often misfired and were notoriously unreliable. Because of their smooth barrels, which resulted in bullets wobbling and flying out in unpredictable directions, they could not be successfully aimed at anything smaller than the broad side of a barn. That is why soldiers generally stood shoulder to shoulder in a broad line and shot all at once, unleashing a wall of lead that might hit some of their enemies. Muskets were not a good weapon if you wanted to shoot at something and actually hit it.
Professional hunters were almost the only people who could afford to own a long rifle with a grooved barrel that could be successfully aimed at a target. Guns were hand-made individually and long rifles, with their grooved barrels, were expensive. For hunters, a gun was a tool of the trade. Muskets were much less expensive and were, as a result, the weapon of choice in arming a militia. And for most ordinary citizens, a musket was merely an adjunct for militia duty. This is something that any school kid, at least of my generation, could see in movies and TV shows about the Revolutionary era. I remember getting that point when I was around ten years old.
In addition, guns of that day, both long rifles and muskets, shot only one bullet and then had to be reloaded with gunpowder and another bullet. Guns at that time were front-loading, meaning that you had to pour gun powder down the barrel and then force a bullet down the barrel each time you shot it. This was a time-consuming process that made guns of that era impractical for personal protection. If you missed your attacker with your first shot, you could be rushed by your enemy. A spear or an axe was a more practical weapon and was generally preferred for self-protection. Again, this is something any school kid could see in movies and TV shows about the Revolutionary era.
Carrying a gun or keeping one in your home was also a dangerous thing to do because you had to store gun powder with it. Gun powder at that time was very volatile. A bag of gunpower could explode with a change in the barometer. It was not something that you would ordinarily want to carry around or keep in your home. A bag of gunpowder in your pocket could have unfortunate results. And it could blow your home to smithereens.
As a result, other than hunters, for whom a gun was a working tool and who were specially skilled in shooting, very few people had guns. Despite the lies of the National Rifle Association and the hypocrisy of the so-called Originalists on the Supreme Court, there was no gun culture in early America, something any kid could see in the movies and on TV. In turn, there was no need for a Constitutional Amendment to protect a person’s right to carry a gun that no one wanted to carry. A militia — now, that was another thing.
Towns and states had militias. Militias were common all over the new country but they were especially important in the southern slave states where they were used to keep the enslaved people enslaved. One of the reasons the southern colonies supported the Revolution was that slaveowners were concerned about the English antislavery movement that had recently succeeded in getting slavery abolished in England and was aiming to get it abolished in the colonies. Having seceded from the English empire and avoided the threat posed by English abolitionists, southern slaveowners now feared the growing anti-slavery movement in the United States that had recently succeeded in prohibiting slavery in the Northwest Territories. The Second Amendment effectively protected the militias that protected the southern slaveowners from their slaves.
Arming a militia was the main reason for guns. Very few individuals had guns, so towns frequently provided guns or required that citizens provide the town with a gun. The town’s guns would, in turn, ordinarily be stored in a militia armory. That is why the British were keen to get to Lexington and Concord in April, 1775 at the beginning of the Revolution when Paul Revere made his famous ride. They were aiming to seize the guns and gun powder stored in the militia armories in those towns. It’s a story that any school kid, at least in my generation, could tell you, and it gives the lie to rightwing misinterpretations of the Second Amendment.
It is also the case that, contrary to the contention of the rightwing Justices on the Supreme Court, gun control was common during most of American History, starting with the early colonists and continuing to the present day[6]. Any kid, at least of my generation, could tell you from movies and TV shows about Wyatt Earp, the famous sheriff of several Western towns in the late nineteenth century, and about the famous shootout at the OK Corral in Tombstone, AZ between the Earps (the good guys) and the Clantons (the bad guys).
Most significantly, what the shootout was about was that the Clantons refused to leave their guns at a checkpoint at the border of the town. It was common for towns in the supposed Wild West to prohibit people from entering the town carrying guns. The rationale and justification for those regulations was made clear by the behavior of the Clantons, who began shooting up the town before they were stopped by the Earps, who were merely enforcing the town’s gun control laws. So-called Originalists are just plain wrong when they claim that gun control violates the theory and practice of the Founders and their descendants.
Both on its face and on the facts, the right-wing interpretation of the Second Amendment is a fraud. I mean, if your Constitutional theory can be given the lie by adolescents watching popular movies and TV shows, how viable is your theory?
Originalism and the First Amendment: A Travesty in the Making?
If rightwing Justices can wreak havoc on the Second Amendment, what’s to stop them from doing the same to other Constitutional provision? Despite the clear language of the First Amendment and repeated statements from many of the Founders, there are already right-wing Justices who claim that the Amendment does not require the separation of Church and State. These Justices, along with the current Speaker of the House of Representatives, who is second in line to the Presidency, seem to believe that there is no constitutional obstacle to declaring the United States to be a Christian nation.
As with the Second Amendment, you would think that self-styled Originalists would be sensitive to the language and the circumstances of the First Amendment. As to the language, the First Amendment clearly states that “Congress shall make no law respecting an establishment of religion.” This seems to be another instance in which the Founders were quite clear in their language. There is no ambiguity here, and for over two hundred years the Amendment has been interpreted in a way that would foreclose declaring the United States to be a Christian Nation. Nonetheless, there are a growing number of self-styled Originalists who seem willing to trample over the words of the Founders to achieve their rightwing political objectives.
As to the circumstances surrounding the First Amendment, right-wing Originalists are on similarly weak ground. Many historians consider the Revolutionary War generation to be the least religious in American history. In the wake of the mid-century turmoil of the Great Awakening, most people were tired of religious controversy and were engrossed in secular issues. The great men of the era – Washington, Adams, Jefferson, Madison, Hamilton, Franklin – were neither church goers nor conventional Christians. At most, they were deists and agnostics. Most important, there is no mention of Christianity in the Constitution. And, of course, there is the First Amendment.
Despite the language of the First Amendment and the attendant circumstances, rightwing Christian Originalists continue to insist that the country was founded in Christianity by traditionalist Christians and should be declared a Christian nation. This is blatant hypocrisy on the part of self-styled Originalists. It is also a dangerous fraud and a potential disaster in the making.
Where do we go from here? A Free Fall or a Roller Coaster Ride?
So, where does the Supreme Court go from here. Will this reactionary Originalist con continue to wreak havoc on the United States. Some Justices have talked about reversing Brown v. Board just as they did Roe v. Wade, and they have even talked about overturning the New Deal and almost all of the social and economic legislation since the 1930’s. The late Justice Scalia, one the original Originalists, was apparently once asked if he thought the New Deal should be overturned on Originalist grounds. His response was that he was an Originalist but he wasn’t crazy. Somc of Scalia’s successors on the Court seem to be crazy. And there is a meanness in their philosophy which seems all too common among right-wingers today.
The bad news is that a majority of the present-day Supreme Court seems to be wallowing in revanchism, trying to claw back the liberal reforms of the past. The good news is that it would only take two of the right-wingers to be replaced by two liberal Justices, or at least two sane Justices, and then the balance of the Court would likely shift back to sanity and maybe even to a Living Constitution approach. The history of the Court has been something like a roller coaster ride. When conservatives take control, the downward slide comes fast. When liberals take control, the upward climb comes more slowly and laboriously. But maybe we have hit bottom and are on the verge of a liberal climb. And hopefully in the not-too-distant future, we will be able to say to the Originalists “What was an elephant doing in your shorts?”
BW 12/23
[1] James Willard Hurst. Law and the Conditions of Freedom. Madison: University of Wisconsin Press, 1956.
[2] “William Goetzmann. Beyond the Revolution. New York: Basic Books, 2009.
[3] Arnold Paul. Conservative Crisis and the Rule of Law. New York: Harper & Row, 1969.
[4] Garry Wills. A Necessary Evil: A History of American Distrust of Government. New York: Simon & Schuster, 1999. P.16.
[5] Michael Bellesiles. Arming America: The Origins of a National Gun Culture. New York: Alfred A. Knopf, 2000.
[6] David Freeman Hawke. Everyday Life in Early America, New York: Harper & Row, 1988.
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