Tag Archives: Constitutional Originalism

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The Constitution as a Communitarian Project. Communalism as the Original Originalism. With Utopian Visions of a Perfect Union. And a Living Document for a Dynamic Society.

“We have it in our power to begin the world over again.” Tom Paine. Common Sense.
“One of the great utopian movements in American history.” Gordon Wood. The Creation of the American Republic.

Burton Weltman

Preface.

The purposes of this essay are twofold. First, the essay contends that communitarianism was the predominant mindset of Americans before, during, and after the framing of the Constitution and that the Constitution is a communitarian document. With utopian hopes mixed in.

Second, the essay is a critique of the doctrine of Constitutional Originalism that has been pushed in recent years by a right-wing majority of the Supreme Court. The essay argues that the doctrine is nonsense, both historically and pragmatically. It just does not work.

The essay argues that the Living Document theory of construction that has been predominant for some one hundred years, and that Constitutional Originalists seek to supersede, is a much better fit for interpreting and applying the Constitution.

And the essay concludes that communitarianism should be understood as the bedrock of the Constitution and the original originalism of Constitutional construction.

Visions and Visionaries: Are you nuts?

Thirteen tiny countries seek to escape the overlordship of an imperialist superpower, the most powerful in the world. With small populations, barely enough people in some of them to make a go of it, they are up against an overwhelmingly larger imperial population. None of them has an army, only local militias, up against the world’s most powerful army and navy.

The countries have only a fragile and fractious alliance in opposition to the superpower. And there is significant popular opposition to the separatist movement, close to a majority of the people. As a result, the ensuing conflict is both a war for independence and a civil war. Nonetheless, most of the most respected and respectable men, including most of the wealthiest and most powerful, are risking their fortunes and their lives in fighting for independence.

They adopt the Latin phrase E pluribus unuum, out of diversity comes unity, as their revolutionary motto. It points up their admiration for the ancient Romans and the Roman Republic. They consider themselves Republicans, that is, men whose main concern is with res publica, the public thing. A more perfect union was the both the means and the goal of their movement.

What, were these guys nuts? Maybe. Most were practical men who had successfully made places for themselves in a land to which Europeans had only recently moved. However, they were also visionaries, motivated not only by the desire for personal success but by ideals of what the world should be like. And with a willingness to risk their all to make it so.

They were not always good men. Most accepted the enslavement of Africans, the conquest of Native Americans, and the subjugation of women. And they did not have any Pollyannish views of human nature. But, still, they shared a communitarian vision of people living together for the good of the many and not merely the few. It was a mindset or weltanschauung that could at times be described as utopian.

This communitarian, sometimes utopian, mindset is a key to understanding the Founders’ intentions in crafting the Constitution. It is the original originalism. It is the original Americanism. And the failure to recognize this is one of the key flaws in the Constitutional Originalism that has in recent years been promoted by right-wing Justices on the Supreme Court.

The Founders as utopians? What, am I nuts? Maybe. But I think not.

A City on a Hill: The Utopian Origins of European Americans.

The utopian impulse in American history began with some of the first European immigrants to America. John Winthrop, in what can be considered his founding speech for the Puritan colony in Massachusetts in 1630, called upon his comrades to build a cooperative community that would reflect the glory of God and be “A modell of Christian charity” for all the world to follow. He adjured them to “entertain each other in brotherly affection” because “we must be knitt together in this worke as one man.” [i]

Fleeing religious persecution in England, the Puritans sought to establish an ideal community in America. They were not socialists, but they were communitarians, that is, devotees of the common good over individual success. Those, Winthrop said, who were fortunate enough to be rich must share their wealth with the poor and give up their luxuries “for the supply of others’ necessities.” The rich must help the poor in their material need and, in turn, the poor must help the rich in their spiritual need. The Puritans were Calvinists and did not believe in the goodness of humanity. They believed, however, that imperfect humans could build a more perfect society.[ii]

And they built a thriving society in which the utopian aspirations of the original immigrants were an essential ingredient in the success of the community. Their communitarian ideals sustained colonists through hard times and provided them with the cooperative attitude that was essential in building the colony. But there was a downside to that success.

The Puritans’ efforts were economically so successful that outsiders who did not share the community’s spiritual goals were attracted to the colony. When these outsiders became economically successful, they were not satisfied with being relegated to second-class citizenship and they began to claim political power commensurate with their wealth.

In consequence, the utopian enthusiasm of the original immigrants waned even as the economics of the colony waxed. It could ironically be said that the Puritan community failed through its success. But not entirely. The Puritans bequeathed to Americans thereafter a communitarian ethos, punctuated by utopian outbursts, that became an important part of the mindset or weltanschauung of the colonists. And that mindset was passed down to the Founders, passed through them into the Constitution, and through the Constitution to us today.

Res Publica: Communitarianism as Americanism.

Communitarianism was a natural fit as a theory and practice for immigrant colonies and, later, for the new republic because it corresponded with the way most Europeans lived in their old countries and then settled in America. Contrary to the impression that is often created in conventional narratives, the decision to come to America during the seventeenth through nineteenth centuries was not typically made by individuals who wanted to merely better their own social and economic positions. The decision was usually made by groups of people who wanted to build a new and better community for themselves and their posterity.

Most European immigrants came to America during this time as groups of people who often had lived in the same locality in their old country and then settled together in their new country. These people came to America as a community with the intention of perfecting their union and doing so without the interference of their old-world noble masters.[iii]

In a similar fashion, when European-Americans moved westward across the continent, they generally moved in groups, first setting up new towns and community institutions before attempting to attract more people. It took cooperation among a village of people in order for anyone to survive in newly settled lands.

To a large extent, European immigrants duplicated the social structures of the villages and towns of their old countries. They brought a communitarian mindset from their farming villages and urban guilds, and it became the founding mindset of Americanism.

Peasant villages in Europe since the Middle Ages had been organized on a communitarian basis, with neighbors often sharing the use of the best land, planting and harvesting together, and cooperating in village institutions. Elders would generally constitute the day-to-day village government, subject to the overlordship of the local nobles whose land they farmed, to whom they paid rent and for whom they performed services. The common good was the goal of the village society and local governance. And very little could be undertaken by villagers without community approval.

Likewise, crafts and businesses in medieval towns were organized into guilds whose purpose was the common good of their members and community at large. What was produced, how it was produced and at what price it was sold was controlled by guild rules and town regulations. Immigrants to America brought these communitarian practices with them.

As in the European villages, almost everything in colonial American towns and cities was subject to regulation in the public interest. You had to get some sort of license or permission to do almost anything. If you wanted to open a business, the town must have had a need for your product or services. You had to have the wherewithal to do a good job, and you has to maintain a sufficiently high quality of product or service. Almost everything that could affect the public was regulated in the public interest. And this sort of regulation continued at the local and state levels in the United States through most of the nineteenth century.[iv]

Right-wing Originalists have seemingly missed this history. They invariably read into the Constitution some variant of laissez-faire capitalism and small government that did not even exist when the Constitution was written. The Founders assumed big government, and pervasive governmental regulation was the norm for them.

There were disagreements among the Founders about the size of government but not in the way they are conventionally portrayed. Conventional narratives portray the disagreements as between those who wanted a big government versus those who wanted a small government. But this was not the case.

The disagreements were primarily about whether government should be big at the local level, an assumption of the short-lived Articles of Confederation, or at the national level, which is an assumption in the Constitution. In either case, pervasive government regulation in the public interest was assumed by the Founders, and communitarianism was an underlying theme of both the Articles of Confederation and the Constitution.

A Rebirth of Utopianism: The Origins of the American Revolutionaries.

The communitarianism that immigrants brought with them from their homelands was a foundation upon which the country was built. And the pervasiveness of communitarian attitudes and practices in America during the eighteenth and nineteenth centuries points to the mindset of the Founders when they wrote the Constitution. It was communitarian with a utopian underpinning.

A rebirth of utopian hopes was a mainspring of the Revolution. The historian Gordon Wood has called the American Revolution “one of the great utopian movements in American history” and it was seen as such by the Founders themselves. Expressing the sentiments of most revolutionaries, Tom Paine exclaimed in utopian terms that “The birthday of a new world is at hand” and that “We have it in our power to begin the world over again.” [v]

Founders such as Washington, Jefferson, Madison, and Franklin, believed that the Revolution would unleash the virtue of the American people so that they could build a society that would be a model for the world. Resurrecting the Puritans’ City on a Hill, their vision was essentially a secular version of Winthrop’s model of Christian charity. It encompassed a commitment to a shared and sharing community — the res publica or public thing. — that emphasized the individual’s role in serving the community — the virtuous man as a public servant. It proclaimed that all for one and one for all would benefit one and all.[vi]

There were, inevitably, tensions among the Founders just as there had been among the Puritans. The revolutionary and post-revolutionary generations went through a transition similar to that of the Puritans from utopian to pragmatic. But there was an underlying communitarian commitment at every turn.

The Founders were both utopians and self-styled realists who saw themselves as trying to establish the most perfect government they could under the circumstance. Theirs was an open-ended utopia rather than a fixed and rigid plan. This pragmatism is reflected in the flexibility of the Constitution, which allows for endless amendments and continually changing interpretations as society evolves.

The Founders did not expect things to work perfectly and they didn’t. The Revolution spawned utopian visions, but also gave rise to partisan politics and regional conflicts thereafter. But the utopian ideals and the communitarian practices that the Founders founded haven’t ever completely disappeared. They are embedded in ourselves and in our Constitution.

Even as powerful individuals and groups have promoted dystopian theories and practices, nurtured nightmares of selfishness, crassness and cruelty, and pushed for disunion and dictatorship, utopianism remains, ironically, a realistic hope. Even today.[vii]

Happily Ever After: Utopianism in American History.

Utopianism is as American as cherry pie. Robert Sutton, a historian of utopian communities, has similarly noted that “the utopian tradition is an unbroken motif [in American history]…There was never any extended period of time when an important experiment, or experiments, was not underway.” Sutton estimates that there were over seven hundred utopian communes in the United States in the year 2000, and many hundreds of cooperatives of one sort or another.[viii]

From the Puritan settlers through the Founders to the present-day, communitarianism has been part of the mindset or weltanschauung of the country. America has, in turn, been seen by people around the world as a land of unlimited opportunity, not only for individuals seeking a better life for themselves, but for people seeking to build a better society. Utopian thinking and practices have been endemic in the country.[ix]

Small-scale utopian communities were a highly visible part of America during the seventeenth, eighteenth and nineteenth centuries, and were widely considered a viable option for the development of the country. Many of the cooperative communities founded during the colonial period were based on religion. Secular utopian communities proliferated as well. Many were substantial communities that lasted for substantial periods of time, some for eighty to one hundred years.[x]

And utopianism was taken seriously by elite leaders and ordinary people alike. When Robert Owen, the wealthy Welsh industrialist turned philanthropist, visited the United States during 1824 and 1825 to promote his utopian socialist vision and establish the New Harmony community, he was personally well-received by a host of the remaining Founders, including Thomas Jefferson, James Madison, James Monroe, and John Quincy Adams.

And Owen twice delivered speeches to Congress outlining his cooperative plans. He concluded with the hope that his new utopian socialist community would be a model for development in the United States. It wasn’t, but many important people thought it could and should be.[xi]

Horace Greeley, the influential editor of the New York Tribune, the preeminent newspaper in ante-bellum America, was a convert to the utopian socialist ideas of the Frenchman Charles Fourier. Greeley employed Albert Brisbane, Fourier’s most prominent American disciple, to write a regular front page column in the Tribune on Fourierism, and Greeley supported the founding by Brisbane of some thirty communes around the United States.[xii]

Utopian theories and communitarian practices were widespread in the United States during the eighteenth and nineteenth centuries. Some one hundred utopian novels were published during this period, many of which inspired experimental utopian communities.[xiii] Utopianism was a significant part of the social and political atmosphere in which the Constitution was framed.

In the beginning were the words….

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” Preamble to United States Constitution.

The United States Constitution has a preamble. Fifty-two words that outline the purposes and intents of the Founders in establishing the Constitution. It is brief, but it sets forth in broad terms the goals the Founders had for the government and the powers they were giving the government to pursue those goals. It is a broad mandate for the government. And it is a communitarian mandate with utopian undertones.

Although the Preamble is not technically part of the Constitution, if people have any questions about the intentions of the Founders in adopting the Constitution, you would think that the Preamble would be the first place to look. But not for the right-wing majority of the present-day Supreme Court.

Essentially eschewing the Preamble as fluff, they claim to apply a literalist reading of the words of the Constitution. And they claim to find in the words a narrow set of original intentions and a narrow set of original provisions that must be strictly followed. In so doing, they reject the Living Document theory of the Constitution that has been predominant for the last century. The Living Document theory supports reinterpreting constitutional provisions in the light of changes to society.

In the Living Document theory, the Constitution is fixed in its basic structure and purposes, but it grows as changes in interpretation keep up with changes in society. The theory has largely been used to expand the powers of the Federal government to regulate the economy in the public interest, provide social services to the needy, and enhance the rights of women, blacks and other historically oppressed groups.

The right-wing Justices reject both the Living Document theory of construction and the progressive purposes for which it has been used. They claim that the Founders intended their words to be strictly construed and interpreted no more broadly than someone could have done in 1787. And these Originalists claim that their method is politically neutral. That it is a way of getting politics out of the Constitution. That they are just honoring the principles of the Founders.

But this isn’t so. Their doctrine is thoroughly political. It provides right-wingers with a rationale for overturning a hundred years of largely progressive interpretations that were based on the Living Document theory of the Constitution. In recent decisions, especially as applied to Presidential powers, gun control and civil rights, the Justices have clearly reached a right-wing political conclusion and then backtracked into it some so-called originalism as their justification.

In so doing, Originalists try to adorn themselves with the mantle of Constitutional conservativism. And they are frequently referred to in the media as conservatives. Originalists claim that they are merely preserving the original intentions of the Founders. Their doctrine is, however, anything but conservative. If their theory is thoroughly applied, it will produce a revolution in American government with enormous consequences for American society.

Originalism is, in fact, a radical theory that seemingly requires the destruction of the American government as it has developed over the last century. And much of the social, economic and political change that has been effected over the last one hundred years could be erased. Which seems to be their goal.

The Justices claim that their Originalism brings more certainty to constitutional interpretation while protecting against political and personal bias. They complain that if the Constitution can be repeatedly reinterpreted whenever a majority of the Court thinks times have changed, then the Constitution no longer provides the stability for which it was designed.

This is, however, an objection that falls on its face. If Constitutional Originalism depends on the clairvoyance of Justices, and their ability to read the minds of the framers, then whatever a majority of the Justices feels the framers intended becomes the law of the land. Where is the stability in that?

In particular, the Court has gutted the checks and balances that the Founders were so keen on embedding in the Constitution and that would keep the President from becoming a king. At the President’s request, the Court has rescinded many of the civil rights and liberties of historically oppressed groups. The Court has also allowed the President to brutalize and incarcerate people without any due process. The Court has permitted the President to use the Department of Justice and the federal courts to prosecute and persecute his political opponents. The Court has allowed the President to restrict people’s rights to free speech and assembly. In sum, the Court has allowed, and even promoted, the assumption by the President of dictatorial powers. All of this in the guise of Constitutional Originalism.

What, are they nuts?

The Constitutional Originalists on the Supreme Court would have us believe that after fighting an almost decade-long war for independence, it was the intention of the Founders to create an imperial chief executive of exactly the sort that they had risked their all to get rid of. That is nonsense.

And they would have us believe that the Founders intended to adopt a laissez-faire economic system which they had never envisioned. And that the Founders intended to establish a federal government that is too restricted and enfeebled to protect, let alone enhance, the rights and liberties of its citizens or to provide for the general welfare as expressed in the Constitution’s Preamble. Again, in sum, the Court is creating the very sort of government that the Founders risked their liberties and their lives to overturn.

The historical truth is to the contrary. The Founders – Washington, Jefferson, Franklin, and even the pragmatic Madison – were communitarian in their practices and utopian in their goals. They wanted a government that could fulfill the promises in the Preamble to the Constitution. A government in which power would be checked and balanced, but that had extensive authority to protect people’s lives, enhance their liberties, and assist their pursuit of collective happiness, all of this in a changing world.

The right-wing Justices would have it that the Founders wanted a constitution that was a mortmain, a dead hand from the past that would grip them in a reactionary stranglehold. Not so. The Founders wanted a living constitution with a flexible framework that would support a dynamic society that was aiming for perfection.

Applying Constitutional Originalism: It can’t be done.

The historian Garry Wills has well summarized the efforts of Constitutional Originalists as “summoning the founders to testify against what they founded.” Which is absurd. Constitutional Originalism is not only historically wrongheaded, it is undoable. Let me count the ways.

In the first place, the theory requires judges to plumb the minds of the various authors of the Constitution, discover their beliefs and, then, interpret those beliefs within the intellectual culture of the Founders’ times. The theory assumes that judges have the skills of intellectual historians and, in so doing, places an impossible burden on them.

As an erstwhile intellectual historian, I can state that intellectual history is a demanding exercise, requiring specialized knowledge and training. It is hard to believe that many judges, who are otherwise well versed in the law, have that knowledge and training.

Second, in justifying their rejection of the Living Document theory, Originalists claim that theory leaves too much leeway for judges to introduce their 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.

We have seen this in the rulings of the right-wing majority of the Supreme Court. Their decisions almost invariably come out on the right-wing side of recent cases. For them, originalism seems to mean going back to the late nineteenth century before the Court began more broadly applying the Fourteenth Amendment and the Bill of Rights. And before the federal government began playing a bigger role in regulating the economy and promoting social justice.

For them, the good old days were the bad old days for workers, women, blacks and other historically oppressed groups. But there is no good reason to think that the Constitution requires this or that the Constitution does not permit us to make things better.

Third, Constitutional Originalism assumes that the Founders were of one mind and that what came out of the Constitutional convention reflected that one mind. The problem with this assumption is that the Constitution was the product of committee deliberations and compromise decisions that make it almost impossible to determine what were the authors’ specific intentions. Anyone who has any experience with committees knows that while the members may come to some agreement on the outcome, they often do so for different reasons and with different expectations.

I have also worked as a government lawyer and in my experience, members of legislative committees frequently approve bills with various members having different ideas of what the bills accomplish. There is no single intention or interpretation. And after they are enacted, laws are variably and pragmatically interpreted and applied.

This sort of 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 the meaning of the Constitution. As a result, finding a single intent for many of the Constitution’s provisions is a fool’s enterprise. Pragmatism must be the order of the day.

Fourth, the difficulty in finding a single intent for the various Constitutional provisions is compounded by the fact that there is no statement of intent for the Constitution that might help explain what the Founders intended. Framers of a constitutional provision or statute will often include an explanatory statement of intent or a legislative history. The statement expresses the will of the authors. The framers of the Constitution did not do this. There is no such explanatory statement for the Constitution. Only a Preamble. And this seems intentional. The Founders, thereby, deliberately left the document open to changing interpretations.

Fifth, the Constitution is a relatively brief document with, for the most part, relatively broad provisions. The constitutions of other nations are much longer and more specific. The United States Constitution has some very specific provisions, such as age requirements for holding various offices, demonstrating that the Founders were capable of devising narrowly specific provisions when they wanted to do so.

The appearance of occasional specific provisions in the midst of a plethora of broad provisions 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. They were drafting a communitarian constitution that could be interpreted and reinterpreted in ways that best worked in the public interest.

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.

Utopian Communitarianism as the Best of the American Way of Life.

So, what do we do now? Some statistics may help. It has been the case for close to one hundred years, ever since public opinion polling was invented, that when you ask Americans an abstract political or ideological question, they will generally fall out at two-thirds on the conservative side, one-third on the liberal side. But if you ask them a personalized or empathetic question, they will generally fall out at two-thirds liberal, one-third conservative.[xiv]

When, for example, Americans are asked questions such as “Do you believe in government welfare programs?” or “Do you believe in government control of the economy?” a large majority generally will say “No.” But when Americans are asked concrete, specific questions about public services, such as “Do you believe that hungry or homeless people should get government assistance?” or “Do you believe that the government should keep corporations from selling unsafe or unhealthy products?” a large majority will generally say “Yes.”

Communitarianism underlays the mindset of most Americans. You just have to give it a chance to show itself. And despite the meanness of right-wing Supreme Court Justices and Trump MAGA supporters, I think we have good reason to believe that the empathy of most Americans will eventually prevail. And that is what the Founders intended.

BW 1/26

Sources:

[i] John Winthrop. “A Modell of Christian Charity (1030) American History. ABC-CLIO, 2011.

John Winthrop. “The Wickedness of the Capitalism of Robert Keayne” Journal, 1639.

[ii] Perry Miller. Errand into the Wilderness. New York: Harper & Row, 1956.

[iii] Oscar Handlin. The Uprooted. New York; Grosset & Dunlap, 1951,

[iv] David Hawke. Everyday Life in Early America. New York: Harper & Row, 1988.

An Act for the Relief of the Poor, Pennsylvania, 1705. American History Online. Facts on File. 2011.

[v] Gordon Wood. The Creation of the American Republic, 1776-1787. Chapel Hill: University of North Carolina Press, 1969.

George Dargo. Roots of the Republic: A New Perspective on Early American Constitutionalism. New York: Praeger, 1974.

John Adams. “Thoughts on Government Letter, 1776: American History. ABC-CLIO, 2011.

[vi] William Goetzmann. Beyond the Revolution: A History of American Thought from Paine to Pragmatism. New York: Basic Books, 2009.

Gary Wills. Inventing America: Jefferson’s Declaration of Independence. Boston: Houghton Mifflin, 2002.

[vii] Timothy Miller. The Quest for Utopia in the Twentieth Century. Syracuse, NY: Syracuse University Pres, 1998.

[viii] Robert Sutton. Communal Utopias and the American Experience: Secular Communities, 1824- 2000. Westport, CN: Praeger, 2004.

[ix] Utopian Societies. American History. ABC-CLIO, 2011.

Arthur Bester, Jr. Backwoods Utopias. Philadelphia: University of Pennsylvania Press, 1950.

[x] Robert Sutton. Communal Utopias and the American Experience: Religious Communities, 1732-2000. Westport, CN: Praeger, 2003.

[xi] Robert Owen. Speech to Congress. American History Online. Fact on File, 2011.

[xii] Brett Barney & Lisa Paddock. Fourierism. American History Online: Facts on File, 2011.

Arthur Bester, Jr. Arthur Brisbane – Propagandist for Socialism in the 1840’s. New York History. Vol. XXVIII.

[xiii] Ellene Ransom. Utopus Discovers America or Critical Realism in American Utopian Fiction, 1795-1900. Nashville, TN.: Joint Universities Libraries, 1947.

[xiv] Jerome Bruner. Mandate from the People. New York: Duell, Sloan & Pearce, 1944.

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What goes around comes around and around… The Fetish, Farce and Fraud of Constitutional Originalism.

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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Three Simple Reasons Why The “Constitutional Originalism” of Brett Kavanaugh is a Judicial Fraud and a Pseudo-Legal Cover for Radical Right-Wing Politics

Three Simple Reasons Why  the “Constitutional Originalism”

of Brett Kavanaugh is a Judicial Fraud and

a Pseudo-Legal Cover for Radical Right-Wing Politics

Burton Weltman

Prologue: I am writing this essay on September 25, 2018. Donald Trump and Congressional Republicans are currently in the midst of a furious effort to push through the appointment of Brett Kavanaugh to the United States Supreme Court.  Kavanaugh is a self-proclaimed “Constitutional Originalist” which, in his case, means that he thinks the United States Constitution should be interpreted according to the meaning of the words in the Constitution as they were understood at the time of its drafting and ratification.  Kavanaugh is currently a federal judge, having been appointed by George W. Bush, but he also has a long history before that as a radical right-wing Republican Party operative.  He claims to be an Originalist but he brings a radical right-wing ideology to his judicial work.

The theory of Constitutional Originalism is a recent development in American history, dating only from the 1970’s.  Its development coincided with the emergence during that same period of the present-day radical right-wing of American politics, the people who brought us the Tea Party and more recently Donald Trump.  Radical right-wingers generally entertain a Social Darwinian approach to society, a libertarian approach to government, and a laissez-faire approach to the economy.  They believe in a dog-eat-dog world in which the rich should rule and the role of the government is to protect the successful rich from the envious poor.  They think of themselves as protectors of freedom against communistic liberals, proponents of excellence against the mediocrity of the masses, and saviors of Western Civilization against the immigrant hordes.

Although right-wingers are often lumped together with conservatives and both are electorally represented by the Republican Party, their ideas and goals are not conservative.  Conservatives tend to support the status quo and accept most of the progressive reforms of the twentieth century.  Right-wingers are radicals who reject the reforms of the Progressive Era, the New Deal, and the Great Society, and want to incite a counterrevolution that would essentially hurl American society back to the nineteenth century.[1]

Constitutional Originalists represent the judicial side of this radical right-wing movement.  The late Antonin Scalia and Clarence Thomas have been radical right-wing proponents of Originalism on the Supreme Court.  Kavanaugh would ostensibly follow in Scalia’s footsteps.  The purpose of this essay to demonstrate that despite its exposition by supposedly learned members of the high court, Constitutional Originalism is patently nonsense and merely a pseudo-legal cover for the radical right-wing political views of these men.  There are many reasons the Originalist theory is false and even fraudulent.  I will outline three simple reasons that I think are sufficiently conclusive.

Reason #1: There were no American dictionaries in 1780’s and there is no other way of determining the definitive meaning for the Founders of the words in the Constitution.

This is really simple.  Originalists say that we should interpret the language of the Constitution exactly as the Founders who wrote it would have interpreted it.  The problem is that there is no way of knowing exactly what the founders meant by the words they used.  There were no American dictionaries at the time and there is no other way of finding out.  But linguistics and etymology are not the real concerns of the Originalists.

Originalists are more concerned with legal results than with linguistics.  Originalism arose in opposition to the “living document” theory of Constitutional interpretation that has long been held by the majority of judges and legal scholars.  According to the “living document” theory, the provisions and words of the Constitution should be interpreted in conformance with the changing circumstances of American society.  As social institutions and norms change, interpretations should change.  On that basis, the Supreme Court found, for example, a right to privacy in the Constitution during the 1960’s and 1970’s that had not previously been declared and used that right as the basis for finding a Constitutional right to contraception and abortion.  Originalism has largely been motivated by opposition to the Court’s finding that the Constitution guarantees rights to privacy and abortion, as has been the right-wing movement generally.

Originalists object to the “living document” theory on the grounds that it undermines the rationale for having a written Constitution and gives judges the power to change the Constitution at will.  They claim it condemns us to a government of fickle men rather than fixed laws.  In this regard, Originalists argue that the “living document” theory destroys the principle of stare decisis, the principle that once something is decided, you should not revisit and revise the decision.  Stare decisis ensures continuity and peace in the law, and it is one of the key principles of the English Common Law from which American common law and constitutional law has evolved.  Without stare decisis, the law becomes a free-for-all struggle in which might makes right.

In claiming that the “living document” theory abjures stare decisis, Originalists are complaining  that it leaves constitutional principles uncertain and subject to partisan changes every time membership on the Supreme Court changes.  This is the reasoning that Originalists use when, for example, they argue that the death penalty should not be condemned under the “cruel and unusual” punishment clause of the Constitution.  If hanging was good enough for the Founders when they composed that clause, it should be good enough for us today.

There are many flaws in the Originalist argument.  To take an obvious one, the way in which we generally determine the meaning of words is through consulting a dictionary.  Dictionaries were invented as a means of standardizing the meanings and spellings of words so that we can have a reasonable idea of what each person is saying when we communicate with each other.  When Noah Webster issued the first comprehensive dictionary of American words in the early 1800’s, his goal was to eliminate the chaos of meanings and spellings that existed in the country.  There was no American dictionary in the country when the Constitution was drafted and ratified, and the fact is that residents of the various states had closer communications and cultural ties with England than with each other.  So, colonists from different states did not necessarily mean the same things with the same words.

The fact that the Founders were able to agree to use the words that are in the Constitution does not mean they held the same views of those words.  And there is no way of finding out because the Founders did not attach an explanatory statement to the Constitution, as most Legislatures do with the laws they enact today.  The Founders seemingly left it to their descendants to decide what the words were going to mean to them.  In this view, words are approached as symbols that need to be reinterpreted as the situations to which they refer change.  Language as well as the law is viewed as living.

With respect to stare decisis, this principle has never been considered absolute and has always been qualified by the facts of changing circumstances.  If the circumstances under which a decision has been made substantially change, then the basis for the original decision may no longer exist, and even the language in which the decision was couched may have changed meanings.  As a result, the decision may need to be revisited and possibly revised, and a new consensus may need to be reached as to the meaning of the words in which the decision is articulated.  The necessity of reinterpreting the law in light of changing circumstances, and the idea that the law is a living and evolving thing, is a basic principle of the common law and of statutory and constitutional interpretation.

And the Founders were fully aware of this principle of changing circumstances when they made the Constitution.  The Revolution had stemmed from the fact that constitutional arrangements between England and the colonies that had been mutually acceptable in prior years were no longer working because the circumstances of both England and the colonies had substantially changed.  And the dispute between England and the colonies focused on the different meanings they were giving to words — words such as “representation,” “taxation,” “domestic trade,” and “foreign trade” — about which they had previously agreed, but did so no longer.

Both the American colonists and the English were citing the same statutes and constitutional principles but using the words in ways that were different from each other and were different from how people had used them in the past.  Meanings had changed with changing circumstances.  Appeals to stare decisis satisfied neither side and did not resolve their differences.  As a consequence, new decisions and new arrangements had to be made.

The Founders knew that meanings change as circumstances change.  As a result, pretending to know what the Founders definitively meant by the words in the Constitution is not only impossible, and essentially a fraud, but runs counter to the Founders’ own intent.  This conclusion leads to Reason #2.

Reason #2: Many of the key phrases and provisions in the Constitution are couched in relativistic terms for which there can be no definitive meaning.

This is simply obvious.  The Constitution is couched in open-ended terms that do not lend themselves to definitive meanings, let alone the definitive meanings of the Founders.  The Founders were not fools, and so they must have known that the Constitution would be subject to competing and changing interpretations.

The Constitution is a remarkably short document, which is probably one of the reasons for its longevity.  It is full of abstract and flexible terms that have to be interpreted and that acquire new meanings as circumstances change.  Many of the most important provisions can have no fixed meaning.  Phrases such as “due process,” “equal protection,” “cruel and unusual punishment,” “establishment of religion,” and “speedy trial,” among many others, can only be defined pragmatically to fit the times, places, and circumstances in which they are applied.  And the Ninth Amendment, which provides that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the People,” is an open invitation for future generations to discover new Constitutionally protected rights as circumstances change.

The meaning of “due process,” for example, depends upon what process people think is due in a particular time, place, and circumstance.  The flexibility of the term is not, however, infinite.  There is a long history in Anglo-American law as to what sort of process is due in various situations.  Based on the principle of stare decisis and on the importance of precedents generally in American law, any determination as to what is due process in a situation must start with past determinations. Then, any deviation from those past determinations must be justified by facts and reasons as to how changing circumstances require the new interpretation.  The meaning of the phrase “due process” should not, in this way, be subject merely to the whims of fickle men or partisan politics.

In the “living document” approach, the words used by the Founders set the parameters for Constitutional interpretation.  As such, you should not be able to use Orwellian double-speak to contradict the Founders’ words.  “Equal” in the Constitution’s equal protection clauses, for instance, should not be construed to mean unequal.  At the same time, the word “equal” does not necessarily mean “the same,” so there is room within the concept of equal protection to come to different and changing interpretations of the phrase, albeit not infinite room.

In Anglo-American law, interpretation has historically been guided and limited by the “reasonable person” standard.  Since we are all products of our times, places and circumstances, and our judgments will be affected thereby, perfect objectivity is impossible and some subjectivity is inevitable.  At the same time, unfettered subjectivity is unacceptable as it would result in the fickleness and partisanship about which the Constitutional Originalists claim to be concerned.  So, the golden mean of interpretation is the reasonable person.  An interpretation is acceptable if it conforms with what a reasonable person in that time, place and circumstance would conclude.  “Reasonable person” is a consensus benchmark, albeit one that is constantly being challenged and revised.  And as consensus on the idea and ideal of the reasonable person evolves, interpretations of the Constitution and other laws can legitimately evolve.

We have historically seen this evolution in cases dealing with public school segregation.  In the case of Plessy v. Ferguson, the Supreme Court decided in 1896 that equality under the law did not require integrated schools, and permitted segregated schools so long as they provided reasonably equal opportunities for education.  In the highly charged racial circumstances of that time, in which many white people, especially in the South, did not want to provide any public education at all for blacks, the Court deemed “separate but equal” a reasonable compromise.

In Brown v. Board of Education, the Supreme Court in 1954 decided that segregated schools had not proven to provide equal educational opportunities and, thereby, violated the requirement of equal protection under the law.  The Court also concluded that segregation was by its nature unequal and unreasonable.  Changing circumstances had led reasonable people to a changed interpretation.  The “reasonable person” in 1954 was effectively more knowledgeable and less racist than in 1896.

Along with stare decisis, the idea of a living law, and the reasonable person standard of interpretation, another basic principle of American law has been the presumption that people intend the natural consequences of their actions.  The Founders created a Constitution that requires interpretation and that for the last two hundred thirty years has been treated as a living document subject to changing interpretation as circumstances have changed.  Given the way the Constitution was drafted and filled with abstract and flexible clauses, the Founders seemingly got what they intended, a living and evolving document.  The attempt by Originalists to radically regress Constitutional interpretation back to the 1780’s is at best a hopeless attempt to put the genie back in the bottle, and more likely a fraud in which they themselves don’t really believe.  This conclusion leads to Reason #3.

Reason #3:  Judges claiming to be Originalists regularly violate their supposed Originalism to uphold radical right-wing rulings.  And that’s what definitively makes it a fraud.

This is simply embarrassing.  Justices Scalia and Thomas and would-be Justice Kavanaugh can wax eloquent about Originalism when they are using it as a pretext to strike down some progressive interpretation of the Constitution or some progressive legislation, but they are complete hypocrites when it comes to upholding right-wing interpretations and laws.  I will cite only three well-known examples.

The first is the idea that money is speech under the First Amendment, and that the First Amendment’s guarantee of free speech permits a person to spend as much money as the person wants on political campaigns and political contributions.  This interpretation makes any serious campaign finance regulations almost impossible and leaves American politics a plaything for the rich.  It is consistent with the Social Darwinian principles of the radical right-wing in America which hold that the rich should rule and those who own the country should run it.

Although the Founders were themselves elitists, the idea that money would be considered the equivalent of speech and that the Constitution would promote unlimited spending in politics was unthinkable to them. When the Founders drafted the Constitution, they hoped to keep political campaigning out of America altogether.  The historical record is clear that they hoped the country would naturally choose the best and brightest to hold political office, without political parties or partisan campaigning.  The Electoral College, for example, was originally supposed to be a colloquium of the best people who would choose the President and Vice President based on who they thought would be best for the country.[2]

Moreover, to the Founders speech was people speaking, not money talking.  There is nothing either in the Constitution or in anything the Founders have left us to reach the conclusion that spending money was considered by them to be protected First Amendment speech.  Such a conclusion is not merely faulty Constitutional interpretation and bad public policy, it is a gross departure from any Originalist interpretation.  Self-styled Originalists, such as Scalia, Thomas, and Kavanaugh, have, however, consistently supported such an interpretation.

The second example, which follows from the first, is the idea that corporations are “persons” under the Constitution, that they deserve the civil rights protections of persons, and that, in particular, they have the First Amendment right to spend unlimited amounts of money on political campaigns.  This idea is literally nonsense on its face and completely contrary to any intention of the Founders.

It is nonsense because it is universally acknowledged that private corporations are merely legal fictions that are created under state laws and that have no right or reason to exist unless allowed by state laws.  There is nothing in the concept of a corporation that resembles the human beings who are protected as persons in the Constitution.  There is also nothing in the Constitution about corporations and there are no private federal corporations.  When the Constitution was drafted, some states didn’t even allow private corporations.  Those states that allowed them kept them under strict control as to what they could do, how big they could become, and how long they could exist.  Nothing could be farther from the concept of a “person” in the Constitution.

Corporation law developed during the mid-nineteenth century, and the regulations governing them became looser over time.  Today, however, each state still has its own corporate law, so that there are fifty different definitions of a corporation, and a corporation can exist only if a state allows for it.  That is not a person.  That’s a thing or a mechanism.

In any case, the Founders had a deep distrust of corporations and hoped they would be used only for public projects that no individual or group of individuals could otherwise undertake.  The historical record is absolutely clear on this.[3]  As a result, the idea of giving corporations the rights of human persons under the Constitution would have been anathema to the Founders.  Nonetheless, self-proclaimed Originalists such as Scalia, Thomas, and Kavanaugh consistently support this interpretation of the Constitution, a misinterpretation that is consistent with their radical right-wing political views.

The third example is the idea that the Second Amendment provides individuals the right to own and keep handguns and rifles in their homes for personal self-protection, and to own and carry handguns and assault weapons in public.  This is nonsense on its face and would have been inconceivable to the Founders.  Among the many reasons, I will cite four simple ones.[4]

The first reason is that guns in those days were muzzle-loading, which meant that you had to pour gunpowder down the gun’s barrel for each shot you took.  This, in turn, meant you had to have a bag of gunpowder handy in order to shoot your gun.  The problem is that gunpowder in those days was extremely volatile.  It might explode with the slightest change in the humidity or barometric pressure.  It was not until the mid-nineteenth century that additives were discovered that made gunpowder safe to store.  As a result, few people during the 1780’s were foolish or foolhardy enough to want to keep a bag of gunpowder in their home.  In turn, few people would have had any reason to keep guns in their home.  So, the Founders would not have conceived the Second Amendment as protecting the right to keep a gun in one’s home since almost no one did.

The second reason is that guns in those days were a very inefficient means of self-protection.   Guns had to be reloaded after every shot, and reloading took several minutes – which would be very inconvenient if you missed your attacker with your first shot.  In addition, most guns were smooth-bored muskets that were extremely inaccurate.   To shoot them, lead balls were shoved down the barrel with some gunpowder.  When the gunpowder was ignited with a match, the ball would rattle down the barrel and wobble into the air.  It was almost impossible for even the most practiced gunman to hit anything at which he was aiming if it was more that a few feet away.

Muskets were effective weapons when shot en masse simultaneously by one bunch of people in a line at another bunch of people.  What was in effect a wall of lead would emerge from the group of shooters and would mow down the other group.  It did not matter that no one hit the person at whom he was aiming because as part of the wall of lead, each person’s ball would likely hit someone.  That is why most military attacks in those days consisted of lines of musketeers shooting at each other.  Muskets were good only if you were in a group, such as a militia, not if you were shooting by yourself.

As a result of the inefficiency of guns for personal self-defense, few people, and very few townspeople, owned guns.  They relied, instead, on spears and hatchets for self-defense.  Militias stored guns and gunpowder in armories that were generally a safe distance away from the populace of a town.  That is why British soldiers were marching to Lexington and Concord when the shot that was supposedly heard around the world and that ostensibly signaled the beginning of the American Revolution was fired at them.  The British were aiming to confiscate guns and gunpowder of the local militias that were stored in armories in those towns.

That first shot probably missed its target, as did most of the subsequent shots fired by colonists hiding behind trees as the British marched eighteen miles down the road.  Some four thousand colonists fired almost continuously all day long at around fifteen hundred British soldiers who were in the open and at relatively close range.  As a result, seventy-three soldiers were killed and 174 were wounded.  There could not be a better illustration of the inefficiency of guns in those days, and why people did not carry guns around with them or keep them in their homes.  It is insulting to think that the Founders would have promoted a Constitutional amendment to protect gun rights that nobody wanted.

The third reason, which follows from the first two, is that the wording of the Second Amendment clearly applies the right to bear arms to militias and not to individual persons.  That wording and that meaning clearly follow from the historical facts recited above about guns and gun ownership, facts that any Originalist smart enough to be on the Supreme Court should know.

The fourth reason is that the Founders could have had no idea of the weapons of mass destruction and the mass production of those weapons that exist today and that the Supreme Court has proclaimed to be protected by the Second Amendment.  The Founders could not have anticipated assault weapons.  So, according to an Originalist interpretation, the Constitution could not conceivably protect the right to own them.

Nonetheless, despite the obviousness of these reasons, so-called Originalists such as Scalia, Thomas, and Kavanaugh, in a manner that is inconsistent with their Originalism but consistent with their radical right-wing political agendas, support gun ownership rights that the Founders could not have intended and that the words of the Second Amendment could not mean.

Conclusion.  Fraud at the highest levels is the highest level of fraud.  Originalism is just such a fraud.  It is so obviously lame that it would be pathetic if it weren’t so harmful.

[1] I have written a blog post on this website that discusses the development of the differences between conservatives and right-wingers.  It is “Do unto others before they do unto you: The Devolution of Conservatism from Burke to Trump And the Evolution of Pragmatic Liberalism from Madison to Obama.”

[2]I have written a chapter on this in my book Was the American Revolution a Mistake (Authorhouse, 2013). It is “Choice #5:Perfecting a Government for an Imperfect Society in the 1780’s-1790’s:Was the Constitution a Mistake?”

[3] I have written a chapter on this in my book Was the American Revolution a Mistake (Authorhouse, 2013). It is “Choice #8: General Incorporation Laws, 1830’s-1880’s: Was the Corporate Revolution Necessary and Proper?”

[4] I have written a blog post on this issue which is posted on this website.  It is “History as Choice and the Second Amendment: Would you want to keep a musket in your house?”