In Neil Gorsuch’s recent confirmation hearings, the Supreme Court nominee’s past legal work and judicial opinions weren’t the only subjects under discussion. Senators also wanted to hear his views on “originalism” — an influential legal approach that, at least by the standard media definition, directs judges to read the Constitution the way that it would have been read when James Madison and the other framers were drafting it.
If confirmed, Gorsuch would fill the seat of Antonin Scalia, a conservative jurist often associated with originalism, and many commentators have applied the term “originalist” to Gorsuch himself. The nominee has bobbed and weaved around the issue. In Senate hearings, when Republican Lindsey Graham asked him if he was an originalist, Gorsuch said, “I’m happy to be called that.” Quizzed by Democrat Amy Klobuchar about whether the use of pronouns “he” and “his” in the Constitution meant that a woman couldn’t be president, Gorsuch replied, “I’m not looking to take us back to quill pens and horse and buggy.” Briefly Gorsuch suddenly sounded like something rather out of fashion among certain conservatives: a judge recognizing the challenge of interpreting a document 230 years old.
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.
The constitution — with a lowercase “c” — that first governed the country after the Revolution had only one branch of government: a unicameral Congress, with each state represented by a delegation having one vote. That constitution, the Articles of Confederation, had no separate executive and no independent judiciary. It required unanimous consent to amend.
The framers thought they had a constitution, just one that wasn’t working. Congress asked the states to send delegates to “render the federal constitution” — the government under the Articles of Confederation — “adequate to the exigencies of Government & the preservation of the Union.”
Creating a workable organization of government was the task of that summer, not writing an intricate document.
Indeed, the most important source we have for the Constitution, James Madison’s “Notes of Debates in the Federal Convention of 1787,” shows that the fluid internal politics of the convention could easily have produced a much different government. In the future president’s notes, the delegates debated for weeks the structures we take for granted — a bicameral Congress with the states represented in one house and the population in the other. Madison did not want the states to be represented. He lost. He and members of the Virginia delegation were so annoyed about losing that they voted for an executive to serve on good behavior with no term limit. That proposal also lost.
Madison’s notes help us see that the framers were too busy writing the Constitution that would save the country to draft the type of airtight document that originalists perceive. The first draft in early August had 23 articles. The president was elected by Congress to a single seven-year term. The Senate appointed the Supreme Court justices and made treaties. There was no vice president. There were lots of issues that they hadn’t figured out or were at odds on. They sent issues out to six small committees that came up with various parts in the final three weeks. The process was so complicated that, in late August, Madison — who became sick serving on three committees — stopped bothering to write his notes. At a moment in the convention when delegates were settling issues that we debate today, such as the Electoral College and presidential treaty powers, we have no contemporary notes from Madison. Madison worried that if “the present moment be lost it is hard to say what may be our fate.”
Other than the five men on the final draft committee, the framers saw the Constitution for the first time on Wednesday, Sept. 12. The convention read the draft. They were exhausted. They voted 10 to 0 against creating a committee to prepare a bill of rights. There were a few changes made — but the official secretary did not keep a good record at this point either. On Saturday, the convention adjourned. On Monday, they signed it.
Only in the fall of 1789 did Madison decide to finish his notes. Thomas Jefferson was returning from France. Madison had said he would share his convention notes with him. Madison now knew how many different interpretations of the Constitution’s text had already become apparent during the ratification debates and the first congressional session.
Madison, who had thought more about the Constitution than many, even acknowledged in Congress that it “does not perfectly correspond with the ideas I entertained of it from the first glance.” As he wrote to his father and Jefferson earlier that summer, “We are in a wilderness without a single footstep to guide us.”
As the government slowly took shape, one small decision shifted the way the Constitution would be read by future generations. In 1789, Madison proposed amendments; they became what we know today as the Bill of Rights. Madison wanted the amendments interwoven with the original text. He thought the amendments should literally revise the Constitution. After an “ingenious and interesting” debate, Congress decided amendments should be supplemental. Only at this moment, two years after the convention, did it become apparent that the 1787 text would remain visually intact from then on.
As Madison finished his notes and revised them, he added in motions and textual changes. Madison had to borrow the official journal from George Washington to get this information. He finished the section from late August to September, now often trying to explain what he thought had been meant by various textual changes.
Madison’s revisions show that words used that summer gradually and subtly came to take on more precise meanings after the convention. My favorite is in the first sentence on the first page. Madison originally wrote that May 14 was the day for the meeting for “revising the federal Constitution.” Eventually Madison crossed out the word “Constitution,” and replaced it with “system of Government.” Instead of a word that was originally broad enough to refer to the world under the Articles of Confederation, the word had come to have only one narrower new meaning: the 1787 Constitution. The meaning of “Constitution” itself morphed in the ongoing process of drafting, ratifying, disputing, interpreting, and living under the Constitution.
From the moment the Constitution became visible in September 1787, its meaning was contested. In a letter widely published in newspapers alongside the text, convention delegates expressed hope that the Constitution would “promote the lasting welfare of that country so dear to us all, and secure her freedom and happiness.” The preamble reminds of us of this same forward-looking wish: “promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.”
Originalism requires that the Constitution be a type of document literally beyond the capacity and purpose of the framers. In his hearings, Gorsuch insisted that judges must look “backward . . . in the sense of looking at historic facts.” But when we look backward at the historic facts of the creation of the Constitution, all we see is a document written under the most trying of circumstances — to ensure a future.
Mary Sarah Bilder, a professor at Boston College Law School, is the author of “Madison’s Hand: Revising the Constitutional Convention.”