The Myth of Originalism

​The Republicans have done a masterful job of creating the image that they are the rightful protectors of the Constitution. They use terms like “strict constructionist” and “originalist” to convey that they will be true to the intentions of the drafters of the Constitution. It’s great politics, but is it really accurate?
The convention to draft the Constitution played out over months with many participants coming and going. All of the attendees were sworn to secrecy. What we do know is that it was a highly debated and often contentious affair that resulted in an imperfect document with a lot of compromise. The 3/5th clause is a perfect example of the imperfection of the document.
There is not a lot of recorded history on this remarkable convention. The main documents that have been preserved that come closest to the original intent are the series of essays that comprise The Federalist Papers. These were mainly written by Alexander Hamilton, James Madison and, to a lesser extent, John Jay. These essays were written as a persuasion tool to promote adoption by the states of the new Constitution. Hamilton and Madison, in particular, would each have an enormous impact on the interpretation of the document during the first government. Madison, as a congressman from Virginia would be instrumental in drafting the first 10 amendments which would become known as The Bill of Rights. Hamilton, as the first Secretary of the Treasurer, would have tremendous influence in defining the powers of the Federal government under the new Constitution.
Almost from the beginning, there was a divide in the role of the Federal government. That divide initially was an urban/rural one. Hamilton advocated for a national bank and a diverse economic society. Madison, along with his mentor Thomas Jefferson, had an inherent distrust of banks and believed that America’s future lay in its vast agricultural potential. To a large extent, this rural/urban divide still exists. So, while Madison and Hamilton were both instrumental in writing, shaping and defining the original constitution, the two of them quickly disagreed on its original intention. The document itself is often vague and open to interpretation. It’s extremely difficult, well over 200 years later, to make a coherent argument to “original intent” when the framers themselves often disagreed on the Constitution’s meaning and interpretation in the immediate aftermath of its adoption.
The genius of the Constitution was the creation of checks and balances between the three branches of government that allowed for our government to take shape and grow all the while being governed by the people and for the people with a smooth transition of power which has remained unbroken.
Many of the arguments over “original intent” stem from what rights should be left to the states as per the 10th amendment. Both sides conveniently use this for their own political purposes. Let’s look at the current administration’s recent position on two separate issues. On LGBTQ issues, the administration has taken the point of view that these issues should be largely left to the states because they want to pander to their evangelical base. Yet, Section 1 of the 14th Amendment seems to be fairly clear that “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws.” Certainly, there are numerous protections of the law that come with marriage. Conversely, this administration has stated that it will look to enforce Federal laws over state ones when it comes to enforcement against marijuana use. Governing an activity that takes place wholly within a state seems to be exactly that kind of right that the framers meant to be left to the states. At the very least, there is a clear inconsistency between these two positions and maintaining a Constitutional purity.
Let’s also remember where the term “strict constructionist” originated. Richard Nixon, during his Presidential campaign and in order to gain Strom Thurmond’s support, promised that he would only appoint “strict constructionists” as judges who would not enforce Brown v. Board of Education.
The more puzzling question is why do Democrats allow Republicans to perpetuate this myth of originalism? In the current political environment, the Democrats are losing ground to the Republicans when it comes to perceptions of defending the Constitution. The Democrats like to point to the concept of a “living Constitution” that is to be interpreted anew by each generation. It’s a lofty and idealistic goal although it is not any clearer that this is what the framers had in mind, either. A better argument for the Democratic party would be to remind us of what we do know as the “original intent” of the framers. That is, they clearly wanted three separate and distinct branches of government that would each play a critical role. As such, the Judiciary plays an extremely important part in being the final independent arbitrator of interpretation of an imperfect 200 plus year document. That doesn’t make them activist judges. It makes them strict adherents to the Constitution in order to fulfill the role assigned to them in the Constitution. The Democrats would also be well served to point out that many interpretations taken by the Republicans under the guise of “originalism” are unfounded, but, are rather politically motivated.
The Constitution, despite its imperfections, is a brilliant document -- all the more remarkable when considered the circumstances under which it was adopted. It belongs to all of us as the preamble begins “We the people.” We have a democratic process that allows for the smooth transition of power under which all citizens can participate. The Constitution does not belong to either party and the Democrats would be well served to remind the electorate that they as well are standard bearers and protectors of it.