Original Meaning and the Constitution

Original Meaning and the Constitution

This may be a surprise to many of my readers, but the original meaning of the Constitution isn't regarded as particularly important by many judges, lawyers, and law professors. Why? There's a rather dense discussion over at the Legal Theory Blog. But what it really boils down to is that much of the left has concluded that an original meaning interpretation of the Constitution would limit the power of judges to remake society. Not because the current state of our society is all that similar to America in 1789, but because following the original meaning of the Constitution in 1789 would utterly preclude most of the left's agenda.

My biggest criticism of the non-originalist interpretative models is this: If originalism is not the only valid basis for deciding how to interpret the text of a constitution, why did 55 men spend several months arguing about exactly how to compose the text of the U.S. Constitution? Why did the First Congress spend quite a number of hours in 1789 arguing about the exact text to send to the states to ratify? Why did the state conventions debate at length ratification of the Constitution and the Bill of Rights? If the meaning of any constitutional provision is simply what a judge today decides makes sense, then all that argument was for nought, and all the text of the Constitution and Bill of Rights can be replaced with a single sentence. "The judges decide what this means." Clearly, the people involved in this process: drafters, ratifiers, pamphleteers, and electors who picked the delegates to ratifying conventions, intended these texts to mean something, or they would not have spent so much energy making a decision that was going to be turned over to judges to figure out a method to justify why the living, breathing, constantly mutating Constitution that started out looking like a gazelle is now half Komodo dragon, half brontosaurus.

Jack Rakove's Original Meanings on p. 101 makes the claim that what the ratifying conventions said about the Constitution was of greater weight than what the participants at the Philadelphia Convention said, because they were elected by the electors of each state for the express purpose of making this decision. While Rakove doesn't argue that the Philadelphia Convention was illegitimate, it was clearly a case of a group that exceeded the authority granted them by the Continental Congress--a group whose legitimacy to make a new, national government binding on not just the States, but the people, was necessarily of lesser strength than the ratifying conventions elected for that purpose.

Original meaning matters. We are not bound by the "dead hand of the past," as the living, breathing, mutating school claims. When conditions and attitudes changed, we amended the Constitution. We discovered a potentially dangerous flaw in the judicial system, and in a surprisingly short time (considering the communications technology of the day), 2/3 of both houses of Congress passed, and 3/4 of the states ratified the 11th Amendment.

We corrected a defect in the presidential election scheme with the 12th Amendment.

We abolished slavery, guaranteed the legal rights of the freedmen, and guaranteed the right to vote regardless of race. (Admittedly, it took a bloody Civil War to make these happen.)

We guaranteed the right of women to vote, of 18 year olds to vote, prohibited poll taxes, banned alcohol, relegalized alcohol, created a national income tax, and changed the presidential succession, all through the amendment process.

The "dead hand of the past" doesn't preclude change. It does require that the change enjoy more than 51% support. The left is upset because they know that on a lot of the issues that they care about--same-sex marriage, stifling Christianity, confiscatory taxation on those who aren't yet rich--they aren't just lacking the requisite supermajority--they don't even have 51%. Hence, the importance of using non-originalist interpretative models for the Constitution. No need to wait (probably forever) for the masses to come to their side--just decide that what used to be a felony in every state is now a Constitutional right. How much simpler can it get?