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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
Aug,
Thanks so much for Paulsen. This is tremendous. He shows that Marshall’s very argument in Marbury is for Constitutional Supremacy and not Judicial Supremacy. In short Marbury defines a very limited version of Judicial Review. One in which we have seen repeated abuses through history. Dred Scott is the glaring example of Judicial Supremacy and the one decision that the left dare not affirm.
Thanks again Aug.
Regards,
Jim
A fun fact to toss into the mix: Madison was quite averse, initially, to John Marshall’s decisions (we probably should discount Madison’s responses to Marbury, since he was a named party in the litigation).
In constructing the contours of the Constitution, Madison was adamant that the Federal government be given a veto right to invalidate state laws. Madison’s initial concern was with abusive state governments. Madison was disappointed when such a clause was left out of the Constitution. Contra the Articles of Confederation, Madison, as Constitutional architect, was pro centralization.
However, once the government was up and running and the Federalist party started pushing for a national bank (and other policies), Madison began to see the error of over concentration. It shouldn’t surprise us to learn that Madison disagreed with many of Marshall’s decisions (they were political opponents–Marshall was a Federalist party intellectual leader). However, what’s somewhat ironic is that the supremacy clause coupled with judicial review (a judicial invention, and a loser on hard-nosed originalist grounds) provides the sort of federal check against state laws that Madison originally argued for, though he probably didn’t want that power lodged in the judiciary.
Agreed. Though the line between interpreting/construing the law and legislating might be a false distinction. Perhaps the real worry is that the only non-controversial check against a judicial interpretation of the Constitution is a Constitutional amendment. Overturning precedent is difficult and unlikely, as the Court is averse to upsetting the equipoise that can grow up around even a wrong decision (this is a rule-of-law argument for keeping bad interpretations “on the books”).