Now that the US Supreme Court’s majority, with its growing train of overreaching decisions, seems hell-bent on destroying that institution’s remaining legitimacy, perhaps it’s time to reconsider the editorial practice of capitalizing the noun “Founders” in articles discussing the Constitution. That practice, a typographical deification of James Madison & Co., only abets the court’s so-called originalists.
As an American and a historian, I’m generally an admirer of those gents who met in Philadelphia in 1787 to write the Constitution. Although they were fallible souls and very much of their own day, I can’t offhand imagine another band of delegates producing a better governing document for the nascent republic, given the exigencies of politics and history that they faced.
But back to today: In recent decisions concerning gun control, public prayer, abortion, and environmental regulations, today’s Supreme Court majority has boldly defied American public opinion, as evidenced by polling data and recent elections. Equally concerning is yet another case they’ve agreed to hear: Moore v. Harper, out of North Carolina, which could accord state legislatures the power to set aside election results they deem unwelcome — a power that would essentially drive a dagger through the heart of American democracy.
Such hubris should not surprise us. After all, five of the court’s current nine justices were appointed by presidents who lost the popular vote. And the term “originalism” is frequently invoked to justify decisions that clearly defy public opinion.
Essentially, originalism is the idea that on subjects on which the Constitution is silent or ambiguous, court decisions should rest on the intentions or expressed views of that document’s authors — i.e., “the Founding Fathers,” aka “the Founders” or “the Framers.” And who determines what the Founders’ views truly were? The Supreme Court’s own trusty originalists.
In my life, I’ve spent a lot of time around historians, and I can assure you that while we have our shortcomings, I’ve never, ever known a historian who claimed, in the absence of clear evidence, to know exactly what was in the head of a long-deceased individual at a given moment. But that is precisely what our so-called originalist jurists purport to do.
Put aside for now the questionable assertion that court decisions should prioritize history — and a document created in the late 18th century — over the realities of modern life. Never mind, for instance, that muskets in the Founders’ era were scarcely distributed among the nation’s small general population. Moreover, those crude firearms took time to load and could fire but one musket ball at a time. And as for abortion, put aside as well the fact that the Constitution contains not a single mention of that procedure — or, for that matter, women.
Even on its own terms, the originalist quest of today’s Supreme Court jurists is a fool’s errand. How are we to expect today’s jurists and their small staffs to know precisely what the Founders thought in their own time, let alone what they would have made of ours? But after suppressing all reasonable doubts about the epistemological pedigree of the originalists’ revealed wisdom, we’re encouraged to address Madison & Co., Oz-like, as “the Founders.” And from there, it’s a mere philosophical hop, skip, and jump to attributing to their handiwork — the Constitution — some sort of Moses-like burning-bush status.
In the end, we’re left in a place that feels woefully long ago and far away.
Doubt my word for it?
Then take it from a Founder. Thomas Jefferson, in 1789, offered James Madison a bracing corrective to the fetishization of the past: “The earth,” he wrote, “belongs to the living.”
Tom Chaffin is the author of “Revolutionary Brothers: Thomas Jefferson, the Marquis de Lafayette, and the Friendship That Helped Forge Two Nations” and “Odyssey: Young Charles Darwin, the Beagle and the Voyage That Changed the World.”
An earlier version of this piece incorrectly stated the number of Supreme Court justices appointed by presidents who had not won the popular vote.