Some of you may recall our Author’s Corner interview with Mary Sarah Bilder on her book Madison’s Hand” Revising the Constitutional Convention.
Yesterday Bilder turned to the pages of the Boston Globe to challenge the “originalist” interpretation of the United States Constitution.
Here is a taste:
The tradition of American constitutionalism, practiced by judges of all political persuasions over two centuries, has always held out an important place for history in the interpretation of the Constitution. But originalism is not constitutionalism. When the word “originalism” began appearing in legal periodicals in the 1980s, a number of influential scholars and judges, primarily on the right, quickly came to treat it as the sole legitimate method to decide constitutional cases. Originalists initially thought that the judge should interpret the text of the Constitution according only to the intent of the men who drafted and ratified it. Today, most originalists contend that a judge should abide by the text’s “original public meaning” — a term of art that originalist scholars have written thousands of pages trying to explain.
Originalism reads our Constitution as if it were a modern technical contract written by experienced lawyers or a contemporary statute written by a team of legislators and staffers, parsing and perfecting every word as they wrote it.
Yet this vision of the Constitution is far different from what we see when we read the historical sources of that moment. In 1787, the framers were struggling to save the United States from division, potential invasion, and collapse. No one had the luxury of even imagining that each and every word possessed an invariable, sacred meaning.
Read the entire piece here.