Originalism is the rage, but Constitution’s authors had something else in mind
Americans often fixate on the origins of their Constitution. Indeed, before the confirmation hearings for the high court’s newest Justice Brett Kavanaugh took an unexpected turn, we found ourselves preoccupied with its birth yet again.
Kavanaugh, after all, like so many recent Republican nominees to the Supreme Court, embraces constitutional originalism — the theory that the Constitution must be interpreted today in accordance with the meaning it had at its inception.
Originalism continues to surge in popularity, winning converts across the federal judiciary, law school faculties, and the political ranks, while the Supreme Court often decides cases based ostensibly on what the Constitution meant to those who conceived it — most prominently of late in the 2008 Second Amendment case District of Columbia v. Heller. As the Kavanaugh hearings reminded us, Americans’ preoccupation with our Constitution’s birth fuels relentless struggles over the Founders’ intent, the Constitution’s original meaning, and the nation’s foundational values.
Despite this outsized attention, crucial features of the Constitution’s creation remain obscure. It is often assumed that the Constitution was fully created in 1787 and 1788 when it was written and ratified. But when it initially appeared, it was shrouded in uncertainty. Not only was the Constitution’s meaning unclear but, far more significantly, it was unclear what the Constitution itself actually was.
Certain answers might have seemed obvious. For starters, the Constitution was a written text. Unlike the unwritten British constitution that Revolution-era Americans had come of age worshiping — which was an amorphous amalgamation of custom, practice, and tradition — the American Constitution enjoyed an obvious tangible presence. Comprised of seven articles and some 4,000 words, it could be located clearly in space and time. But in 1789, when members of the new federal government began putting the Constitution into effect, this basic description revealed little about the Constitution’s definitive features. No matter the depth of American constitutional debate to that point, there were no easy answers to a host of basic questions that cut to the Constitution’s core. What kind of object was it: a text, a system, a framework, or something else entirely? What defined its character: was it akin to other legal instruments or completely novel in kind? Was it a complete and finished instrument or were subsequent users to fill in its gaps and resolve its contradictions? Was its meaning set in stone or changing? The Constitution was born in flux.
Those leaders who gathered under its auspices, in other words, did not merely carry a well-understood instrument into effect; they had to answer these open questions about the Constitution’s very nature. By fighting over how to imagine the Constitution — its content, its properties, its character — they gave the Constitution shape and definition it had previously lacked. In so doing, they helped create the Constitution.
Initially, national leaders tended to imagine the Constitution as an unfinished, amorphous system that needed further elaboration. They often dismissed the idea that the Constitution was merely a text — words frozen in time. Massachusetts Reverend Samuel Stillman argued, “if this Constitution is as perfect as the sacred volume is, it would not secure the liberties of the people.” Because, he explained, “nothing written on paper will do this.” In agreement, James Madison, who played an outsize role in creating the document, disparagingly referred to constitutional texts as mere “parchment barriers.” The Constitution, both thought, was something to be built as much as it was scripture to be honored.
Accordingly, during the earliest debates over the Constitution, many congressmen assumed that it was unfinished — and that it was their job, as elected representatives, to help complete it. They embraced Madison’s earlier remarks from Federalist 37: “All new laws, though penned with the greatest technical skill. . . are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.” During the controversial debate over chartering Alexander Hamilton’s proposed national bank in 1791, for instance, bank defenders argued that it was irrelevant that the Constitution failed to expressly delegate Congress a right to charter corporations because the Constitution could not possibly have anticipated all future developments. Accordingly, it vested Congress with adequate discretion to accommodate the nation’s needs.
Others in Congress began challenging these arguments, though, and in the process began imagining the Constitution much differently: as an inert text circumscribed in space and time. They argued that the Constitution’s uncertainties could be resolved by excavating what its original authors had thought its words meant. Over the course of the 1790s, more constitutional debates began to turn on appeals to the history of the Constitution’s creation. Those who had insisted that the Constitution was necessarily unfinished found it too tempting not to join this game.
Over time, sustained appeals to the Constitution’s history helped ingrain a new kind of idea: that the Constitution was born finished.
Among the most important concepts to be remade in the process of this transformation was constitutional fixity itself. Prior to 1787, Americans had readily believed that constitutions were simultaneously fixed yet changing. There was nothing contradictory about these twin notions. The British constitution had rested on this logic, and nothing that had happened since Independence had undermined its appeal.
Indeed, Americans’ hesitancy to reduce their Constitutions to language had been an extension of this belief. In 1788, James Madison had reminded Americans that “no language is so copious as to supply words and phrases for every complex idea.” It was a “cloudy medium” incapable of definitive expression, particularly when it came to constitutions. So while the American Constitution was fundamental law, its meaning could change as future generations interpreted its uncertain contents.
But as Americans began sanctifying the Constitution’s creation, they turned fixity and change into antagonists. Thereafter, the Constitution was one or the other, but not both. Late in life, Madison, who had once disparaged “parchment barriers,” now complained that “the language of our Constitution is . . . undergoing interpretations unknown to its founders.” There had been too many departures, he worried, from “the original and authentic meaning” of the Constitution’s words and “it was the duty of all” to recover them. Madison’s dramatic transformation paralleled broader changes in American constitutional imagination.
When, today, constitutional originalists and living constitutionalists squabble over whether the Constitution’s meaning is fixed or evolving, they illustrate just how enduring this peculiar conception of constitutional fixity has been. It seems impossible to avoid this fundamental choice.
Yet, nothing about the Constitution itself demanded that Americans ever thought of fixity and change as mutually opposed. This choice owes less to the Constitution than an entirely optional way of imagining it, one forged during the decade following the Constitution’s nominal creation. If we look at the early history of the Constitution anew and put aside our obsessive search for an original fixed document, we will find a story about how the Constitution’s first users inadvertently sanctioned a novel idea of constitutional fixity.
If we grasp this hidden history of the Constitution’s creation, we might recognize that we are as free to imagine the Constitution’s possibilities anew as those Americans who first took custody of it so many years ago.
Jonathan Gienapp is an assistant professor of history at Stanford University and author of “The Second Creation: Fixing the American Constitution in the Founding Era.”