The pitfalls of assuming ‘original intent’ of Founders
For the past few weeks I have been moving across the country on a book tour. Writing a book is a solitary experience, but promoting a book is a social adventure, part cocktail party, part circus. Along the way, audience reactions force changes in the script, much like an improvisational comic on the nightclub circuit, cutting jokes that don’t work. After a while you can predict the questions and give answers that sound improvised but are, in fact, semi-scripted.
My book is about the dead zone in American history between the Declaration of Independence (1776) and the passage and ratification of the Constitution (1787-88). If the former was bottom-up movement, I argue, the latter was top-down, orchestrated by an elite that changed the direction in which American history was headed.
Here are four questions from the tour that took me by surprise:
Why did you say that Lincoln lied in the Gettysburg Address?
I didn’t say that Lincoln lied, rather that the first clause in the first sentence of the most famous speech in American history was factually incorrect. Lincoln said “Four score and seven years ago our fathers brought forth on this continent a new nation.” No, they did not. They brought forth a confederation of sovereign states temporarily united to win the war against Great Britain, then go their separate ways, which they then did. Allegiances remained local and state-based in 1776. No national ethos existed.
Lincoln had to revise history in order to argue that the Southern states had no constitutional right to secede from the Union. In fact, they did, if you make 1776 the founding moment. If the Civil War was about ending slavery, as Lincoln first proclaimed in the Gettysburg Address, in order to be morally right he had to be historically wrong.
What would George Washington think about the current crop of presidential candidates?
Washington came from a different America, where the very act of campaigning for office and declaring oneself most qualified to serve was tantamount to a confession that you were unqualified. No president in American history did not want to be president more than Washington. And none of our earliest presidents would compromise their integrity by running for national office in the current political climate. Given the demands of the modern presidency, it baffles me that anyone of sane mind would actively seek it.
Do you agree that the Second Amendment provides a nearly unlimited right to bear arms?
James Madison wrote the Second Amendment, indeed the first draft of the entire Bill of Rights, in the late spring of 1789. His chief source was the list of 132 amendments recommended by six state ratifying conventions. His intentions were political rather than philosophical, namely to appease the reluctant rectifiers by taking their suggested limitations on federal authority seriously. None of the proposed amendments mentioned the right to bear arms. Three mentioned the fear of a standing army. The Second Amendment was designed to assure that national defense would remain in the hands of state militia, not a professional army. The right to bear arms, in Madison’s mind, was not a natural right, but derived from service in the militia.
Does that mean that you think the 2008 Supreme Court decision is wrong?
Yes, and doubly so. The majority opinion in Heller v. District of Columbia, written by Antonin Scalia, purports to be a poster-child for the judicial doctrine of “original intent,” yet it ignores the unequivocal intentions of Madison that I have just described, presumably because Scalia shaped his opinion around a conclusion that he had already reached beforehand. Anyone with even modest knowledge of how the Constitution was written and ratified realizes that the document was not sacred script composed by inspired philosopher-kings with unique access to the eternal verities. It was a series of political compromises among political camps with conflicting intentions, none of which survived the debates intact.
If you want to take “original intent” seriously, shouldn’t Supreme Court justices be historians rather than lawyers? Or, if you read Article III of the Constitution, isn’t it clear that the last thing the 55 delegates in Philadelphia wanted was a Supreme Court that was the ultimate arbiter of the Constitution, which thereby renders all four members of the court who embrace “original intent” moot? Finally, one of the few convictions that all the prominent Founders shared in common was the insistence that subsequent generations not be held hostage to their time-bound intentions. As Thomas Jefferson put it, “We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.”
As a legal doctrine, “original intent” is not just problematic, it is preposterous, at odds with how history in its inevitability messy way happened, and the unanimous opinion of the Founders, who wished to be remembered, to be sure, but not embalmed.
Joseph J. Ellis is author, most recently, of “The Quartet: Orchestrating the Second American Revolution.”