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George Will Gets It Wrong
Madison
George Will writes in “Some GOP Candidates Are Becoming Unhinged”:
In 1824, in retirement 37 years after serving as the Constitutional Convention’s prime mover, James Madison, 73, noted that the 1787 “language of our Constitution is already undergoing interpretations unknown to its founders.” He knew that the purport of the text would evolve “with the changeable meaning of the words composing it.”
Will later notes that “Such evolution [of the meaning of the Constitution] is real and relevant.”
At first glance, this looks like a heavy blow to originalism; like Madison said that the meaning of the Constitution would change without the text changing and that one of the guys who wrote the Constitution openly rejected originalism!
But first glances can be deceiving, and I didn’t leap to any of these conclusions after I read Will’s article. This called for some investigation. I thought I would start by running the Madison quote through Google. After George Will himself, the first thing that comes up is Mark Levin’s book. After I clicked on that, I got to see the Madison quote with a bit more context.
It turns out that — here at least — what you see on a first glance is frightfully wrong.
Here are Madison’s words in all their glory and with some emphasis added (copied from here, where you can see the whole letter from which they come):
With a view to this last object, I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no Security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense. And that the language of our Constitution is already undergoing interpretations unknown to its founders, will I believe appear to all unbiassed Enquirers into the history of its origin and adoption. Not to look further for an example, take the word “consolidate” in the address of the Convention prefixed to the Constitution. It then and there meant to give strength and solidity to the Union of the States. In its current & controversial application it means a destruction of the States, by transfusing their powers into the government of the Union.
So Will got it exactly wrong. Madison thought it was a tragedy that the “language of our Constitution is already undergoing interpretations unknown to its founders.” We must adhere to the original meaning and resist the effects of “the changeable meaning of the words composing it.”
Reading the Constitution according to interpretations unknown to its authors is not a way to get at the Constitution’s new meaning. It’s a way to miss the Constitution’s real meaning.
That’s what Madison means: “In that sense alone” – the original sense – “it is the legitimate Constitution.”
Published in Domestic Policy, Law
In the course of finishing up this opening post I stumbled across some more commentary on Will’s misuse of Madison. It’s good and edifying reading:
Like.
George Will Get It Wrong.
There fixed that for you.
George Will has increasingly become less and less reliable for conservative causes.
Yeah, the commentary on National Review was a good elaboration on that topic.
He’s said a lot that was right. At the moment I can’t remember anything specific, but that’s my memory’s failure, not Will’s. I do have a fuzzy memory of reading something he wrote not too long ago that was very good.
In addition to poor research, Will’s logic was conspicuously weak. The fact that Americans’ views on marriage are changing does not support the notion of fabricating new applications of the 14th Amendment to impose a fixed viewpoint.
I like George Will but I think he should be watching baseball and eating tapioca at home at this point in his career.
Any text without context becomes pretext.
A good sentence. I think I first heard it in a biblical hermeneutics class.
He’s a limousine conservative, part of the ruling class.
If the words in what is essentially a contract can change over time without the agreement of all (or a super majority, as in the amendment process) who are signatories to it (the states), then those words effectively have no meaning at all. The rule of law in a constitutional system depends on adherence to what the constitution says. If it essentially says anything or nothing, depending on the interpreter, there is no rule of law.
Right on!
Madison may have thought it a tragedy, but he also bowed to reality. He thought Hamiliton’s bank idea was unconstitutional and argued the point strongly in Congress, but 20 years later his opinion was that it was constitutional because 20 years had passed and it was still the law. I’m not sure George Will’s point is anything other than that some of the amendments proposed to undo Justice Kennedy’s screw-ball reading are equally screw-ball.
I don’t quite follow. Why do you say he changed his opinion on its Constitutionality?
On this point, I won’t take on Will. He might well be right.
That’s because he’s becoming a libertarian (about which I could not be happier). He even reveres the Ninth Amendment. YAY! (But, the rights mentioned there are the natural, so-called negative rights, not the Left’s laundry list “positive rights” that violate natural rights.)
It’s true that one doesn’t learn, from Will’s short quote, of Madison’s disapproval of using changing meaning to understand the text of the Constitution. But, Will is still making an honest use of the part he does quote to make his point.
SParker makes an important point. Richard Epstein discusses how incorrect constitutional judgments (made through legislation or the courts) may appropriately “become” constitutional. He labels this the “prescriptive” element to the Constitution. He also provides robust analysis about when prescription can act in such a way and when to shy away from it. Check out his most recent con law book, The Classical Liberal Constitution.
I like this addition to the debate, since it underscores a strong point in favor of a Burkean practicality to the law. But in many cases, we fall back on tradition without sufficient justification. And it is in those instances when not tradition, but rather right-reason ought to be summoned to offer a defense of the jurisprudence. If it is tradition alone, we have a problem.
Will is slowly going through the change that happens in DC to people who were originally conservative. He has become a moderate, at least some of the time, and his reflexive need to find out who said what and what was said is apparently suffering as well.
Well, it’s my duty and pleasure to defer to Epstein until I have time to carefully look into a matter like this for myself!
Let’s see if I understand the idea here. I think you’re saying:
How would this affect Will’s use of Madison, or my opening post? Maybe you’ll have to tell me, but it seems to me that it would be in these ways:
Augustine,
This is a very important point. Not only does Will have it backward but the full quote is a very powerful argument for originalism in and of itself. Madison shows he is well aware of the changing meanings assigned to words. He is very clearly telling you that this is not how to interpret the Constitution.
Stay with this theme Aug. Love may have won this current Court inanity but the perverse are not able to define love or anything else properly. Time will out their inherent error.
Regards,
Jim
I find it rather odd that Will would make such an error, it is unusual for him to be so careless in his writing. It almost leads me to suspect it was intentional, he is not the conservative he was.
I guess it’s possible that Will thought Madison was worth citing on the fact that language changes over time, and understood that Madison wasn’t really with him in rejecting Originalism–but thought that detail wouldn’t matter.
Aug & all,
My point is let’s stop worrying about George Will and concentrate on Madison. This is one of the purest statements of Originalism that I’ve seen in a long time. Maybe we should be happy that Will stumbled and Augustine had the sense to research this. Stay with this idea it’s important. A priori concepts are not going to change over time. A colloquial use of a particular word changes all the time. You must not confuse that with a change in the underlying concept. This is what we are supposed to be paying Supreme Court Justices the big bucks for knowing the underlying unchanging concepts. They shouldn’t be chasing ideas that are the intellectual equivalent of the hula-hoop or a pet-rock (if you are less than a certain age you’ll need to look those two references up and that shows you how ephemeral they are).
Regards,
Jim
Excellent remarks!
To Geogrge Will, conservatives are still “kamikaze conservatives .”
Yes. The two best examples I can think of are judicial review (Marbury v. Madison) and the dormant commerce clause.
Madison’s own position on the National Bank is evidence that very strong reliance interests and precedent can operate to satisfy a question of a law’s/institution’s constitutionality. But this theory is not a rejection of faithful textualism (he argued, for example, that the “general welfare” clause did not give the gov’t carte blanche).
My own view is that extreme hard-nosed originalism (of which J. Thomas is the most prominent practitioner) is unworkable. There has to be reference to background theory. Once sufficient institutional reliance interests have developed over time, certain constitutional interpretations must stand. In order to discern and wrestle with what constitute “sufficient reliance interests,” (a devilish question) I’ll refer you (here, here, and elsewhere) to Professor Epstein.
George Will has the habit of prefacing his remarks with increasingly distant historical references.
“In 1968, a singularly traumatic year –”
“In 1952, Adlai Stevenson …”
“On June 5, 1942, the U.S. last declared war …”
“In 1849, the Supreme Court held …”
I see he’s now worked his way back to 1824.
Eight years from now, expect the then 80-something pundit to be on some panel quoting the Book of Genesis, relating some political temptation of campaign 2024 to Eve’s thing for apples.
I congratulate the man on his immunity to TV’s Law of Demographics — never make yourself seem older than the audience.
Thanks for the tips! I’ll need to find some way to keep those links open or save them until I can look over them all properly. I’m a simple Originalist, but there’s a very strong chance I’ll modify my views after I get a chance to study Epstein properly, especially if “reference to background theory” is a big component of it.
I’ve been aware of his Classical Liberal Constitution for a while. You’re inspiring me to mark it as a higher priority on my Amazon list. (Unfortunately, that doesn’t guaranty I’ll read it anytime soon.)
If I ever get around to launching an Originalism conversation on Ricochet, I hope I have the sense to modify whatever I said on Facebook a year ago in light of tips from you as well as what I’ve been able to understand from Epstein by then.
Continued . . .
(Continued)
Two, more substantive remarks:
Oik & Aug,
I’m glad this subject has been brought up. Judicial Review wasn’t in the Constitution and the assumption that Marbury v. Madison is something that can be just accepted at face value is a very bad one.
We should look at Judicial Review on a spectrum.
No Review >> Limited Review << Judicial Supremacy
Nowhere is it suggested that Supreme Court gets to invent legislation and be the Supreme law of the land. Dred Scott is an example of what most people consider Judicial Supremacy. It overturned 50 years of highly sensitive congressional compromise legislation with a very short sighted decision. Some feel it is what made the Civil War inevitable.
What Roberts did on ACA is very much Judicial Supremacy. What Kennedy did on SSM is without question Judicial Supremacy. Thomas Jefferson himself didn’t think there was any Judicial Review. We can assume this to be an extreme position. However, anyone who construes Justice Marshall’s Marbury ruling as a license to legislate is just wrong. Constitutionally and every other way.
Regards,
Jim
Jim et al,
I suspect we’re all in broad agreement on a few big principles, like the impropriety of judicial supremacy and judicial legislation, and the disaster that is the liberal/progressive hermeneutic.
On questions like pure Originalism vs. Epstein’s hermeneutic, I must recuse myself for the present. Also on the original constitutionality of judicial review.
(I have an opinion on this latter point. I am, for the present, following Michael Stokes Paulsen, whom I have recently begun to think of as THE MAN, in Marbury interpretation. But I am in no position to promote it or defend my view; linking to Paulsen is all I can do.)
Paulsen’s “The Irrepressible Myth of Marbury v. Madison” is online here, and I hope to read it as well as more Epstein, beginning with links from Oikonomia.
For that matter, I should track down that Yoo piece on Originalism from some months back. If I download one of each on my phone I may be able to make some progress.