Originalism or Modernism

Which method of constitutional interpretation is philosophically sound?

Introduction

I plan a series of articles on matters such as abortion and the Second Amendment but before I write those I needed to explore the methods of constitutional interpretation. Before doing my research, I knew that I believed that judges should view the constitution as a living breathing document as that is the only way that the constitution, which the framers made very hard to amend, could survive the test of time.

I had assumed that I would find that the originalists stand on firm ground as well — that I would find some underlying philosophical (and ethical) footing securing its foundation. However, I have formed the opinion that originalism is just a method adopted by power structures or those that seek to join a power structure to implement their agenda. I formed that opinion after researching Scalia’s concurring opinion in Citizen’s United, which opinion claimed that the ruling had an originalist basis that the majority chose not to rely upon. However, upon seeing that his opinion was nothing more than a strained rationalization, the hypocrisy revealed itself and I then knew that originalism is nothing more than a tool of the white and wealthy power structure and those that seek to join them.

What did the Framers Intend?

I came across an article by Andrew Shankman, an Associate Professor of History at Rutgers University-Camden, who also wrote a book Original Intents: Hamilton, Jefferson, Madison, and the American Founding. The article discusses that Hamilton favored the living document view, and while Madison at first did not, he came around to it. Jefferson would probably fit the originalist view but only because he felt that the constitution should be rewritten every twenty years.

The article focuses on the debate about the constitutionality of the chartering of a bank by Congress:

Testing originalism by investigating the first great constitutional conflict after ratification undermines the claim that the Constitution had one single and stable public meaning for the founding generation. In December 1790 Hamilton, the Secretary of the Treasury, issued a report calling for the national government to grant a corporate charter for a national bank. The bank would manage the large public debt and safely house federal tax revenue. Madison, a national congressman, and Jefferson, the Secretary of State, were appalled and insisted that the bank was unconstitutional because the Constitution did not grant the national government the authority to charter corporations.

Hamilton’s view prevailed, and just a year or two later Madison came around to his interpretive view but from a different direction.

Hamilton had a top-down and elitist conception of an open-ended and living Constitution. Statesmen and lawmakers would draw connections between desired policies and enumerated powers. Once a connection was plausibly established, they could take an action not expressly permitted by the Constitution if the Constitution did not expressly forbid it. Initially, Madison seemed to be arguing for a fixed and rarely changing Constitution. But in 1791 and 1792, as he continued to challenge Hamilton’s policies, his constitutional thinking evolved. He developed a bottom-up and democratic conception of an open-ended and living Constitution.

Madison penned essays that Shankman says clearly support the living document view:

Going back to the founders, we find them telling us to focus on our twenty-first century problems and to stop using them as an excuse for our inaction. The stable original intent we can most likely take from them is that we all must be keenly alive to our duty to be thoughtful, compassionate citizens. It is in Madison’s essays written in the early 1790s that we find the richest resonance of his powerful statement at the Constitutional Convention: “In framing a system which we wish to last for the ages, we should not lose sight of the changes which ages will produce.”

My Personal View Explained

In order to support the living document view, I decided to view the constitution as a contract between the government and the people. Now, contracts are usually interpreted according to their original intent and there is a faction of originalists who rely on contract law to support originalism.

[Proponents]adhere to originalism because they believe the very idea of a written constitution requires it. Analogizing to contract law, Barnett argues that interpreting written instruments requires adherence to original meaning; otherwise, parties could contradict the explicit provisions of the contract, and interpretation would require the difficult enterprise of reading the minds of the parties. Epstein argues the case more simply: “[T]he idea that constitutions must evolve to meet changing circumstances is an invitation to destroy the rule of law. If the next generation can do what it wants, why bother with a constitution to begin with, when it is only an invitation for perpetual revision?”

See https://www.nationalaffairs.com/publications/detail/the-founders-originalism.

However, contract law also has the doctrine of the implied covenant of good faith and fair dealing. I wrote a legal memorandum in May of 2020, which I turned into my very first Medium article in September 2020, about how this doctrine could be used to rewrite any contract where one party is thrown into default by COVID-19.

Quoting the very influential 7th Circuit Appellate Judge Richard Posner:

The task of legal theory is not simply to help decide (close) cases. Legal theory also seeks to illuminate the character of legal relations. …. Good faith thus characterizes contract obligation’s form and identifies an attitude towards contractual obligations: good faith supports the parties’ contractual settlement, working to “effectuate the intentions of the parties, or to protect their reasonable expectations. According to Judge Posner, the duty of good faith “is a stab at approximating the terms the parties would have negotiated had they foreseen the circumstances that have given rise to their dispute.” Good faith, on this approach, is thus just another “way[] of formulating the overriding purpose of contract law, which is to give the parties what they would have stipulated for expressly if at the time of making the contract they had had complete knowledge of the future and the costs of negotiating and adding provisions to the contract had been zero.”

The Problems with Originalism and the Hypocrisy Revealed

Originalists are conservatives. Liberals, progressives, and minorities cry foul with regard to originalism, after all, white men wrote a constitution that allowed slavery and gave no political power or rights to women. Yet, I assumed that I would read some compelling reason that originalism has merit, which I had intended to distinguish by comparing originalism to the fundamentalist religious interpretations of sacred texts and pointing out that a government is not a creed with rules of worship to be followed. Nevertheless, I did not find that foundational stone. Instead, I found utter hypocrisy.

The wealthiest of the wealthy stealthily started a class war at least as far back as 1981, using their money to lobby for favorable treatment. Years earlier political advertisements were exempted from the truth in advertising laws, laying the groundwork for a propaganda war, which then became a slaughter when the Supreme Court decided Citizens United, overruled its own precedent now that a conservative majority was in place and held that the limits on corporate political donations were unconstitutional.

In order to concur with overruling the precedence, Scalia wrote a separate opinion that originalism mandated the holding.

My research brought me today to this article: ORIGINALIST OR ORIGINAL: THE DIFFICULTIES OF RECONCILING CITIZENS UNITED WITH CORPORATE LAW HISTORY, in which the authors conclude:

Based on the historical record, Citizens United is far more original than originalist, and if the decision is to be justified, it has to be on jurisprudential grounds originalists traditionally disclaim as illegitimate.

After reading the full article, I agree. The authors convincingly shred Scalia’s reasoning to pieces. Upon seeing this I realized that not only is originalism similar to religions in that both are constructed to install and or maintain a power structure, but in fact, that is the only pillar upon which originalism stands and thus it fails philosophical scrutiny.

Here’s my essay on the constitutionality of abortion which concluded that laws that run counter to Roe v. Wade violate the First Amendment’s prohibition on the establishment of religion.

In Rama I create, with soul-energy surging through my body, inspiring me and breathing wind into my sails,

Marcus (Gregory Maidman)