Were the framers of the Constitution “originalists”?

As a historian, I want my students to understand, as best as possible, the meaning of the constitution in its 18th-century context. This requires them to know something about a world that is long gone. We like to say, with the writer L.P. Hartley, that “past is a foreign country, they do things differently there.”

But there is a big difference between understanding the world of the framers and suggesting that we should still live by that understanding today. Such an approach ignores changes over time.

Such an “originalist” approach to the Constitution also implies that the ideals embedded in the Constitution were not contested and controversial at the time they were written.

Here is a taste of constitutional historian Jack Rakove’s piece at The Washington Post:

At first glance, questions of original intent seem like ideal problems for historians to solve. How can we determine what the Constitution truly meant except by examining why its clauses were proposed and how they were supported or criticized? The Constitution and its amendments were products of political debates; reconstructing those debates is how one would decipher its “original meaning.”

But the main advocates for originalist theory are lawyers, not historians, and they act under different assumptions. Where historians would be content to describe a set of debates reflecting an array of perspectives, legal originalists want to “fix” the meaning of constitutional terms — to come up with the one best answer to the puzzles that jurists have to solve. They assume the words the framers used had settled meanings and that a conscientious reader — an informed public official, a learned jurist or just a responsible citizen — can understand those meanings without knowing anything about the debates that produced the text.

One problem with this idea is that the founding era was a period of intense conceptual change. Some of the key words and terms in our constitutional vocabulary were subject to pounding controversy and reconsideration. One has to engage these debates to understand how Americans were thinking about these issues at the time. For today’s originalists, that complexity is part of the problem. The records of history are often messy, not neat; speakers argue past each other or engage in rhetorical excess; their fears are dated, their expectations of worst consequences exaggerated.

Rather than accept these aspects of the historical record, today’s originalists prefer to regard the Constitution as a purely legal text, subject to ordinary rules of construction. Yet the linguistic sources they rely on will not provide the answers they seek. There is no adequate dictionary definition of “the executive power” that Article II vests in the president. Understanding what the “establishment of religion” invoked in the First Amendment meant to its framers requires examining the complex ways in which the states had supported the existing denominations of a very Protestant America. As Thomas Jefferson explained in his “Notes on the State of Virginia,” the very word “constitution” had multiple meanings that were still evolving precisely because Americans were trying to figure out how to make written constitutions — their greatest innovation — the supreme law of the land.

Context, context context. As I see it, it difficult to be a historical thinker and a constitutional originalist.

Read the Rakove’s entire piece here.

How Will Historians Remember the Decade (2010-2019)?

Trump iN Dallas

Politico asked historians how the history books will cover the past decade.  Contributors include David Kennedy, Tom Nichols, David Greenberg, Keisha Blain, Peniel Joseph, Heather Cox Richardson, George Nash, Kevin Kruse, Andrew Bacevich, Claire Potter, David Hollinger, Nicole Hemmer, Jack Rakove, and Jeremi Suri.

Here is Heather Cox Richardson:

Polarization and the rise of politically active women

The perfect symbol of the 2010s came in February 2015, when an image of a dress went viral on social media as Americans fought over whether its pattern was #blackandblue or #whiteandgold. America was divided in this decade, with splits over economics, politics, religion and culture exacerbated by social media. A set of increasingly extreme Republicans stayed in power by convincing voters that Democrats under biracial president Barack Obama, whose signature piece of legislation was the Affordable Care Act making health care accessible, were intent on destroying America by giving tax dollars to lazy people of color and feminists who wanted to murder babies. And in 2016, Republicans leaders weaponized social media with the help of Russians to elect to the White House Donald J. Trump, who promised to end this “American carnage.” On the other side, in 2013, the rise of the Black Lives Matter Movement helped galvanize those who believed the system was stacked against them. And in January 2017, the day after Trump’s inauguration, the Women’s March became the largest single-day protest in American history. By the end of that year, the #MeToo Movement took off as women shared their ubiquitous experiences with sexual harassment and demanded an end to male dominance. In 2018, when Republicans forced through the Senate the Supreme Court nomination of Brett Kavanaugh, who had been creditably accused of sexual assault, they helped convinced voters to elect a historic number of women and racial minorities to Congress in in the 2018 midterm elections, almost entirely on the Democratic side. The story of the 2010s is of increasing American polarization, but also the rise of politically active women to defend American democracy against the growing power of a Republican oligarchy.

Read the other entries here.

Are the Founding Fathers Back In Vogue?

Earlier today we posted a video of a session on race and monuments from the Aspen Ideas Festival.

Here is another video from the Festival that will be of interest to readers of The Way of Improvement Leads Home.  The session is titled “Are the Founders Back in Vogue.”

The panelists include Yoni Appelbaum, Annette Gordon-Reed, Jack Rakove, Noah Feldman, and Jon Meacham.  Not a bad lineup.  I should also note that two of these five esteemed panelists have been guests on The Way of Improvement Leads Home Podcast.

There is some great stuff here on historical thinking, the uses of the past in the present, and the role of history in constructing a national community.

Watch it here:

 

The Undemocratic Senate

Anyone who studies American Constitutional history knows that the United States Senate was never meant to be a “democratic” institution.  In its original design, the senators were not elected by the people.  The so-called upper house was meant to be a “check” on the more popular House of Representatives.

For example, think about the impeachment process.  The “people” bring impeachment charges against the president, but the Senate serves as the jury.  The Senate, to use the words of Henry Hyde during the Bill Clinton impeachment trial, are the gods on “Mount Olympus.”  In the minds of the founders, the Senate was to be made up of wiser, more educated men who would keep “the people” in check. The so-called gods of Mount Olympus did not see fit to remove Andrew Johnson or Bill Clinton from office, despite what the “people” wanted.

Granted, the 17th Amendment made the Senate a more democratic place by establishing the direct election of senators, but according to Brooklyn College political scientist Corey Robin, the upper house is still the place “where democracy goes to die.”

His post is informed heavily by the work of Stanford historian Jack Rakove and this New York Times piece by Adam Liptak.

A taste:

Every once in a while I teach constitutional law, and when I do, I pose to my students the following question: What if the Senate apportioned votes not on the basis of states but on the basis of race? That is, rather than each state getting two votes in the Senate, what if each racial or ethnic group listed in the US Census got two votes instead?

Regardless of race, almost all of the students freak out at the suggestion. It’s undemocratic, they cry! When I point out that the Senate is already undemocratic—the vote of any Wyomian is worth vastly more than the vote of each New Yorker—they say, yeah, but that’s different: small states need protection from large states. And what about historically subjugated or oppressed minorities, I ask? Or what about the fact that one of the major intellectual moves, if not completely successful coups, of Madison and some of the Framers was to disaggregate or disassemble the interests of a state into the interests of its individual citizens. As Ben Franklin said at the Constitutional Convention, “The Interest of a State is made up of the interests of its individual members.  If they are not injured, the State is not injured.” The students are seldom moved.

Then I point out that the very opposition they’re drawing—between representation on the basis of race versus representation on the basis of states—is itself confounded by the history of the ratification debate over the Constitution and the development of slavery and white supremacy in this country.

Something to think about.  Read the rest here.

HT: Amy Bass