What Would the Founding Fathers Think About Originalism?

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Andrew Shankman, author of Original Intents: Hamilton, Jefferson, Madison, and the American Founding and the author of my favorite review of one of my books, says “not much.”

Here is a taste of his piece at History News Network:

President Trump’s nomination of Neil Gorsuch to the Supreme Court likely ensures the continued significance of originalism for constitutional interpretation. Originalism is a complex legal theory. But boiling it down, it means that judges and lawmakers are bound by the meaning the words in the Constitution had when it was ratified. The original public meaning of those words cannot change. Pressing contemporary issues and compassionate wishful thinking cannot allow the words of the Constitution to justify actions that were not intended when the Constitution became the nation’s fundamental law.

Is the claim for an original intent historically defensible? Exploring the constitutional thought and actions of Alexander Hamilton, Thomas Jefferson, and James Madison shows that it is impossible to ascribe a single original intent to even so small a group of critically important founders. Instead, we find multiple original intents and competing meanings. With Hamilton and Madison, two of the most vocal members of the Constitutional Convention, we find, though in very different ways, endorsement of a living, expansive, and flexible Constitution, one that changes with the times and over time.

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.

Read the rest here.

I also recommend Jonathan Gienapp’s piece at Process, “Constitutional Originalism and History.”

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