Yesterday’s Non-Originalism

 

James_Madison_Portrait2Conservatives tend to be originalists in constitutional interpretation. But not all to the right of center are originalists, and not all non-originalists are hard-core, leftist living constitutionalists. There’s a view of non-originalism that’s remarkably compatible with conservativism. I don’t endorse it myself, but it’s well worth looking at.

Another way of putting it: There’s an alternative to originalism that’s not today’s alternative. It’s not the Left’s. It’s old, or at least it has old roots. It has a lot to do with Madison. Let’s start with some of his principles and build up to that alternative:

First, Madison tells us that the Constitution is given its authority by the people:

[The Constitution] was nothing more than the draft of a plan, nothing but a dead letter, until life and validity were breathed into it by the voice of the people, speaking through the several State Conventions.

So said Representative Madison to the Congress in 1796.

Second, Madison tells us in that speech that the will of the people can determine the meaning of the Constitution.

Third, he tells us that the repeated interpretation of multiple branches of government sets a precedent of constitutional interpretation for future legislation. Madison:

. . . the constitutional authority of the Legislature to establish an incorporated bank . . . [is] precluded in my judgment by repeated recognitions under varied circumstances of the validity of such an institution in acts of the legislative, executive, and judicial branches of the Government, accompanied by indications, in different modes, of a concurrence of the general will of the nation . . . .

That was President Madison in his 1815 message accompanying a veto of the National Bank. He had once thought a National Bank unconstitutional, but here he’s changed his mind: Although he vetoes the bill, he makes it clear that he is doing so on policy grounds, not constitutional grounds. In 1816, he signed what he said was a better bill, authorizing the Second Bank.

Fourth, although he tells us that the meaning of the words does not change over time, he also tells us that the only legitimate meaning of the Constitution is that accepted and ratified by the people:

. . . 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.

That was Madison in a letter written in 1824.

Fifth, Madison tells us that the meaning of the Constitution chosen by the people through the repeated and continued decisions of diverse branches and levels of government overrules even his own view of the meaning of the Constitution:

My construction of the Constitution on this point is not changed. But I regarded the reiterated sanctions given to the power by the exercise of it, thro’ a long period of time, . . . under every administration preceding mine, with the general concurrence of the State authorities, and acquiescence of the people at large . . . all this I regarded as a construction put on the Constitution by the Nation, which having made it had the supreme right to declare its meaning . . . .

That was Madison in 1826, explaining to Lafayette why he had eventually opted not to veto the national bank.

Sixth, Madison again tells us that in his judgment, the people had determined the meaning of the Constitution. They had done so by “a course of precedents” set by all the branches of government and “amounting to the requisite evidence of the national judgment and intention.” And that, he tells us, is why he had not vetoed the national bank. (This is in an 1831 letter commenting on Jackson’s veto of the bank.)

So the people of the United States of America control the meaning of the Constitution, and they decide what it means through the repeated decisions of multiple branches of government. If these Madisonian principles are taken to their extreme, it’s pretty clear that the people can thereby change the meaning of the Constitution. Thus law scholar Gerard Magliocca says of Madison’s hermeneutics that “This Burkean approach to constitutional interpretation is the antithesis of originalism.” (page 217)

Now, Madison doesn’t actually say as much (as far as I can tell). These principles might not be taken to their extreme; they might accompany an originalism and simply be used only to clear up ambiguities in original meaning. Magliocca is countered by Judge Richard Arnold, who says of Madison that “He certainly was an advocate for originalism … in the sense of the original meaning of the document, when viewed against the times in which it was adopted.” (page 292)

But whatever. Let’s consider those principles taken to their extreme: The will of the people controls the meaning of the Constitution, and it is expressed through the decisions of the government the people select. Precedent determines the meaning of the Constitution. Precedent includes judicial rulings, but also executive decisions and, most importantly, acts of Congress. The people’s control over constitutional meaning is absolute. What a passage of the Constitution did not mean when it was written and adopted, it may mean today — if the people want it to.

So, for example, say an interstate highway system under federal management or federal funding is not consistent with the original meaning of the original Constitution or any subsequent amendments. No problem: It’s constitutional now. Ditto for a federally managed social security system.

And note how different this is from the left’s non-originalism:

  • Judicial acts aren’t enough to change the Constitution. The Madisonian view requires the consent of the people via repeated decisions by multiple branches of government, as well as the States.
  • Change in constitutional meaning happens slowly.
  • One who discerns a change in constitutional meaning is looking to the settled will of the nation in the past. In allowing that change, he’s still conservative in an important sense — recognizing a change in the Constitution in order to not change the country that was created by We The People.

Now, I’m an originalist myself. But I think this here is a pretty respectable view. Though there’s a dispute between originalism and the Madisonian version of non-originalism, both are opposed to the Left’s “living constitution” version of non-originalism. In fact, while I could be wrong about this, I think when we talk about pitting originalism against this Madisonian view, we’re more or less talking about Ricochet’s Yoo v. Ricochet’s Epstein. And those dudes are both pretty cool.

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  1. Aaron Miller Inactive
    Aaron Miller
    @AaronMiller

    Well said. It’s good to remember that America’s founding fathers often disagreed on important standards.

    I’ve often argued on Ricochet that any law — be it a minor regulation or a founding constitution — is only valid / operational if (1) officers enforce it (2) and citizens obey it. There is danger in unbalancing that relationship at either end.

    If a law does not represent the interests of the people it governs, then it will be ignored or disobeyed unless officers are capable of forcing it. Under an older government like ours with so many various and incomprehensible laws on the books, that official force is ever more necessary and ever more grating.

    Fortunately for our corrupted overseers, the American electorate too has generally been corrupted… tempted away from the values and assumptions on which the US Constitution is predicated. Our present distance from the original meanings of Constitutional clauses is commonly acceptable among citizens who have experienced nothing else.

    The Tea Party movement inspired a renaissance of political philosophy, introducing millions of Americans to our founding documents and debates (thanks largely to the promotion of such by rising star Glenn Beck). That return to original concepts and aspirations is what now struggles to find expression within the Republican party and causes friction all around. Originalist citizens are incompatible with modern government.

    • #1
  2. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    Saint Augustine: We Conservatives tend to be Originalists in Constitutional interpretation.

    I was under the impression that “originalists” believed in everything prior to the amendments, while “constructionists” are the ones who believe in a narrow reading of the text.

    Do I have my nomenclature wrong?

    • #2
  3. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Misthiocracy:

    Saint Augustine: We Conservatives tend to be Originalists in Constitutional interpretation.

    I was under the impression that “originalists” believed in everything prior to the amendments, while “constructionists” are the ones who believe in a narrow reading of the text.

    Do I have my nomenclature wrong?

    I’m afraid so.

    Originalism is the view that the meaning of the Constitution doesn’t change except when the text changes: no change in meaning without an amendment.

    So one of the first misunderstandings regarding Originalism that needs to be cleared away is the notion of originality in time.  Originalism is not about the first meaning of the Constitution, but about the original meaning of all of it.  The last amendment, I believe, was 1992.  An Originalist looks primarily to the meaning at the time of the founding because that’s when most of the remaining text was written and adopted and first read.  But for the 14th Amendment, he looks to the mid-late 1800s.  For the last amendment, he looks to the 1990s.

    • #3
  4. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Aaron Miller:That return to original concepts and aspirations is what now struggles to find expression within the Republican party and causes friction all around.

    A good, if messy, development.

    Originalist citizens are incompatible with modern government.

    Indeed.  And so are the Madisonian non-Originalists.

    • #4
  5. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    Saint Augustine: An Originalist looks primarily to the meaning at the time of the founding because that’s when most of the remaining text was written and adopted and first read. But for the 14th Amendment, he looks to the mid-late 1800s. For the last amendment, he looks to the 1990s.

    I learned something today!

    • #5
  6. Claire Berlinski, Ed. Editor
    Claire Berlinski, Ed.
    @Claire

    Did anyone else read the 1815 veto and just feel a terrible sadness? Look at Madison’s language:

    Having bestowed on the bill entitled “An act to incorporate the subscribers to the Bank of the United States of America” that full consideration which is due to the great importance of the subject, and dictated by the respect which I feel for the two Houses of Congress, I am constrained by a deep and solemn conviction that the bill ought not to become a law to return it to the Senate, in which it originated, with my objections to the same.

    He then carefully — and respectfully — lays out his thinking on both constitutional and policy grounds, and concludes:

    In discharging this painful duty of stating objections to a measure which has undergone the deliberations and received the sanction of the two Houses of the National Legislature I console myself with the reflection that if they have not the weight which I attach to them they can be constitutionally overruled, and with a confidence that in a contrary event the wisdom of Congress will hasten to substitute a more commensurate and certain provision for the public exigencies.

    It’s so obvious from the language that he deeply grasps the principle of division of power. He fully understands that he must justify using a veto, given that the sanction of two Houses of the National Legislature do clearly indicate something meaningful. He’s addressing Congress and the public it represents with great respect — and he concludes by affirming his certainty that Congress has wisdom either to decide that he’s wrong — and he concedes he may be — or to consider his arguments and agree: And in that case, he’s certain they’ll quickly draft a bill commensurate with his view of the need for provision for public exigencies. So many hallmarks of a functional democracy there, no? Respect for Congress, an understanding of the proper role of the presidency, humility.

    Now look at this:

    TO THE SENATE OF THE UNITED STATES:

    I am returning herewith without my approval S. 1, the “Keystone XL Pipeline Approval Act.”  Through this bill, the United States Congress attempts to circumvent longstanding and proven processes for determining whether or not building and operating a cross-border pipeline serves the national interest.

    The Presidential power to veto legislation is one I take seriously.  But I also take seriously my responsibility to the American people.  And because this act of Congress conflicts with established executive branch procedures and cuts short thorough consideration of issues that could bear on our national interest — including our security, safety, and environment — it has earned my veto.

    And no, it’s not all Obama’s fault. You’d have to be a million kinds of delusional to think any of the GOP candidates would restore that kind of dignity to our government.

    • #6
  7. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Claire Berlinski, Ed.:Did anyone else read the 1815 veto and just feel a terrible sadness? Look at Madison’s language:

    . . .

    Right on.

    . . . You’d have to be a million kinds of delusional to think any of the GOP candidates would restore that kind of dignity to our government.

    He who does, makes America great again.

    • #7
  8. Claire Berlinski, Ed. Editor
    Claire Berlinski, Ed.
    @Claire

    All that said, I think we might want to be just a little bit cynical in our reading of history. Madison’s change of heart may have been owed less to deep soul-searching about the constitutionality of a national bank and more to the War of 1812, don’t you think?

    • #8
  9. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Claire Berlinski, Ed.:All that said, I think we might want to be just a little bit cynical in our reading of history. Madison’s change of heart may have been owed less to deep soul-searching about the constitutionality of a national bank and more to the War of 1812, don’t you?

    I’m an ignorant loser who has no idea.  But I wouldn’t put it past him!

    • #9
  10. Larry3435 Member
    Larry3435
    @Larry3435

    The Constitution comes in two parts.  One part defines the structure of government.  Three branches, bicameral legislature, terms of and qualifications for office, etc.  There are occasional disputes about this part (e.g., what does “natural born citizen” mean), but it is mostly pretty clear.  When disputes about this part of the Constitution do arise, I think originalism is a very sound approach to resolving those disputes.

    The other part of the Constitution, however, is different.  It is about limiting the power of government.  This part includes the enumerated powers of the federal government, the Bill of Rights, the 14th Amendment’s equal protection and due process clauses, etc.  The purpose of this part of the Constitution is to protect against abuses of the democratic process.  Abuses of the majority.  Simply put, against mob rule.

    Originalism is not well suited to interpretation of the second part of the Constitution, because the issues that arise about possible abuses of governmental power are almost always issues that the founders did not foresee (or, as in the case of slavery, which the founders could not resolve among themselves).  For this part of the Constitution, I favor a “functionalist” approach.  The question becomes “is this the kind of governmental overreach that the Constitution was intended to prevent?”  That question really can’t be resolved by reference to the language of the Constitution alone.  It requires a knowledge of the history and philosophy that underlies the Constitution.

    • #10
  11. I Walton Member
    I Walton
    @IWalton

    Fascinating article thanks.   The constitution has the look, feel and authority of black law but was crafted by men who had been raised in common law, an organic inherently conservative thing.  Here it seems Madison is reflecting that tradition and saying the constitution remains part of it.

    • #11
  12. Claire Berlinski, Ed. Editor
    Claire Berlinski, Ed.
    @Claire

    Saint Augustine: I’m an ignorant loser who has no idea. But I wouldn’t put it past him!

    Well, it just seems a more natural reading of history. The War of 1812 left the US in debt, right? The first bank was established to pay off the revolutionary war debt. I wonder if he’d have changed his mind about the constitution had the war not happened. I mean, as Ted Cruz might put it, the constitution didn’t change — the poll numbers did. Maybe?

    • #12
  13. Larry3435 Member
    Larry3435
    @Larry3435

    By the way, I notice that it took about three seconds for this post to get promoted to the main feed.  How does that work, exactly?

    • #13
  14. Owen Findy Member
    Owen Findy
    @OwenFindy

    Misthiocracy: I was under the impression that “originalists” believed in everything prior to the amendments

    Hmm.  If that’s the case, then my agreement with Charles Cooke’s claim that the Bill of Rights are part of the original because the original would not exist but for them, makes me some species of non-originalist.

    • #14
  15. Claire Berlinski, Ed. Editor
    Claire Berlinski, Ed.
    @Claire

    Larry3435:By the way, I notice that it took about three seconds for this post to get promoted to the main feed. How does that work, exactly?

    It did not. I carefully checked every link and every fact and in doing so got completely lost in the Madison archives. For hours. Whole morning shot. Don’t click on any of the links in that post if you value your productivity, I caution you.

    • #15
  16. Owen Findy Member
    Owen Findy
    @OwenFindy

    Good post, BTW.  Velly intellestink.

    • #16
  17. Hang On Member
    Hang On
    @HangOn

    Question: How does the understanding of Madison you’ve laid out differ from the British notion of their Constitution, i.e., it is unwritten and changes with changes in Parliament, i.e., the will of the people?

    • #17
  18. Larry3435 Member
    Larry3435
    @Larry3435

    Claire Berlinski, Ed.:

    Larry3435:By the way, I notice that it took about three seconds for this post to get promoted to the main feed. How does that work, exactly?

    It did not. I carefully checked every link and every fact and in doing so got completely lost in the Madison archives. For hours. Whole morning shot. Don’t click on any of the links in that post if you value your productivity, I caution you.

    I guess time differences can work magic.

    • #18
  19. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Larry3435:By the way, I notice that it took about three seconds for this post to get promoted to the main feed. How does that work, exactly?

    It was at least three hours.  I was watching.

    • #19
  20. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Hang On:Question: How does the understanding of Madison you’ve laid out differ from the British notion of their Constitution, i.e., it is unwritten and changes with changes in Parliament, i.e., the will of the people?

    An excellent question.  My first thought is, “I have no idea.”

    On second thoughts, I think I still have no idea.  There ought to be some difference, since we’re supposed to have a written Constitution in the USA.  I imagine someone who is Madisonian in this sense would say there is a difference.  But I’m not sure what it is.

    I might get back to you later if I find out.  Maybe someone else knows.

    • #20
  21. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Claire Berlinski, Ed.:

    It did not. I carefully checked every link and every fact . . . .

    Well done!  That sort of thing could be a lotta work.

    • #21
  22. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Larry3435:

    Originalism is not well suited to interpretation of the second part of the Constitution, because the issues that arise about possible abuses of governmental power are almost always issues that the founders did not foresee (or, as in the case of slavery, which the founders could not resolve among themselves). For this part of the Constitution, I favor a “functionalist” approach. The question becomes “is this the kind of governmental overreach that the Constitution was intended to prevent?” That question really can’t be resolved by reference to the language of the Constitution alone. It requires a knowledge of the history and philosophy that underlies the Constitution.

    Thanks for these remarks!  Let’s see if I can keep the terminology straight.  You’re a “functionalist” and not an “originalist.”  And your last few sentences are a pretty direct rejection of “strict constructionism,” right?  I think this is also a rejection of “textualism.”

    So (assuming I’m using the terms rightly) do you think originalism requires strict constructionism?  I.e., do you think that an originalist cannot interpret the Constitution by asking “is this the kind of governmental overreach that the Constitution was intended to prevent?”

    • #22
  23. Claire Berlinski, Ed. Editor
    Claire Berlinski, Ed.
    @Claire

    Saint Augustine:

    Claire Berlinski, Ed.:

    It did not. I carefully checked every link and every fact . . . .

    Well done! That sort of thing could be a lotta work.

    I love my job because I can spend a whole morning doing that and just tell myself I’m being a really careful and diligent employee.

    • #23
  24. Mark Coolidge
    Mark
    @GumbyMark

    Larry3435:The Constitution comes in two parts. One part defines the structure of government. Three branches, bicameral legislature, terms of and qualifications for office, etc. There are occasional disputes about this part (e.g., what does “natural born citizen” mean), but it is mostly pretty clear. When disputes about this part of the Constitution do arise, I think originalism is a very sound approach to resolving those disputes.

    The other part of the Constitution, however, is different. It is about limiting the power of government. This part includes the enumerated powers of the federal government, the Bill of Rights, the 14th Amendment’s equal protection and due process clauses, etc. The purpose of this part of the Constitution is to protect against abuses of the democratic process. Abuses of the majority. Simply put, against mob rule.

    The two parts are one interrelated whole.   The structural part of the Constitution is essential to the preservation of limited government and the protection of liberty.  Weakening the structural part, as has happened over a long period, inevitably erodes liberty and expands the power of government.

    • #24
  25. Derek Simmons Member
    Derek Simmons
    @

    Aaron Miller: Fortunately for our corrupted overseers, the American electorate too has generally been corrupted… tempted away from the values and assumptions on which the US Constitution is predicated. Our present distance from the original meanings of Constitutional clauses is commonly acceptable among citizens who have experienced nothing else.

    Amen with emphasis on your “Fortunately for our corrupted overseers”

    • #25
  26. Larry3435 Member
    Larry3435
    @Larry3435

    Saint Augustine:Thanks for these remarks! Let’s see if I can keep the terminology straight. You’re a “functionalist” and not an “originalist.” And your last few sentences are a pretty direct rejection of “strict constructionism,” right? I think this is also a rejection of “textualism.”

    So (assuming I’m using the terms rightly) do you think originalism requires strict constructionism? I.e., do you think that an originalist cannot interpret the Constitution by asking “is this the kind of governmental overreach that the Constitution was intended to prevent?”

    I am not a strict constructionist where the words don’t have a strict construction.  I am strict about carrying out the purpose of the Constitution, when that purpose is to limit governmental power.

    So, for example, nobody doubts that the First Amendment protects some types of speech, and doesn’t protect others (e.g., defamation, false advertising, yelling “fire” in a crowded theater, kiddie porn).  Can we make this distinction by reference to some strict construction of the words of the First Amendment?  I don’t see how.  I don’t think it’s possible.  Not a “bad idea,” but impossible.

    So I turn to the purpose of the First Amendment – To protect the marketplace of ideas.  To protect the citizenry’s right to dissent.  To protect the freedom of conscience to think about ideas and express those ideas.  In microcosm – to protect Ricochet, but not to protect jihadist communications in furtherance of terrorist plots.

    • #26
  27. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    An excellent post, St.A. I love posts that talk about the Constitution. As a novice on the subject, I loved Hillsdale College’s courses on the Constitution. My question for you: given the multiple ways that the people could be “heard” regarding changes to the meaning with the non-originalist approach, how would “proposals” get sorted out and decided?

    • #27
  28. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Larry3435:I am not a strict constructionist where the words don’t have a strict construction. I am strict about carrying out the purpose of the Constitution, when that purpose is to limit governmental power.

    So, for example, nobody doubts that the First Amendment protects some types of speech, and doesn’t protect others (e.g., defamation, false advertising, yelling “fire” in a crowded theater, kiddie porn). Can we make this distinction by reference to some strict construction of the words of the First Amendment? I don’t see how. I don’t think it’s possible. Not a “bad idea,” but impossible.

    So I turn to the purpose of the First Amendment – To protect the marketplace of ideas. To protect the citizenry’s right to dissent. To protect the freedom of conscience to think about ideas and express those ideas. In microcosm – to protect Ricochet, but not to protect jihadist communications in furtherance of terrorist plots.

    I’m fairly confident (though by no means certain) that I’m following you here, and I agree with what I’m following (or what I think I’m following).

    But do you take these considerations as objections to Originalism?  I was under the impression that that was your original purpose in bringing up “functionalism.”  But I don’t consider these considerations to weigh against Originalism at all.

    • #28
  29. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Susan Quinn:An excellent post, St.A. I love posts that talk about the Constitution. As a novice on the subject, I loved Hillsdale College’s courses on the Constitution. My question for you: given the multiple ways that the people could be “heard” regarding changes to the meaning with the non-originalist approach, how would “proposals” get sorted out and decided?

    Thanks!

    think I can answer that question.  In this Madisonian non-Originalism, only what a strong majority of We the People consistently approve by the repeated acts of multiple branches and levels of government can become a change to the Constitution’s meaning.

    • #29
  30. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    Saint Augustine: I think I can answer that question. In this Madisonian non-Originalism, only what a strong majority of We the People consistently approve by the repeated acts of multiple branches and levels of government can become a change to the Constitution’s meaning.

    My initial reaction is that it’s fascinating but pretty risky in these times. Like you, I think I’d stick with Originalism.

    • #30
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