By Steve Snyder
“Originalism” has arguably been the most prominent theory of legal interpretation of the U.S. Constitution since Antonin Scalia became an associate justice of the Supreme Court some 30 years ago. Scalia has been a regular lecturer at conservative legal conferences of organizations like the Federalist Society, where he advances the originalist point of view. With the addition to the court of other conservative justices, especially Samuel Alito, he has found others with whom to make common cause. (It should be noted that this way of thinking about the Constitution is not a new one. Chief Justice Roger Taney, was not only a strict constructionist, but also the first theoretical originalist of note). (1)
“Originalism” is the idea that we should follow the original intent of the Founding Fathers in interpreting the Constitution (2), but it is carried out in a manner that can only be described as fetishizing the text and its authors. It may or may not focus on the static text as its starting point (which is why one finds at least two significant originalist schools), but it is worth noting that only two of the people who were in Philadelphia, in 1787 — James Madison and Alexander Hamilton — left detailed records of their respective lines of thought, via the Federalist Papers. Also noteworthy is the fact that Madison changed his mind on quite a number of things in the years after that, most significantly, on the issue of states’ rights.
This fetishistic commitment to one unchangeable text and a set of idealized authors suggests a parallel between Constitutional originalism and religious fundamentalism — and especially Christian fundamentalism. (3) A second parallel lies in there being two sub-schools, which we find in both ideologies, one focused on the original intent of the writers of the text and the other on the original meaning of the text itself. A third lies in the selectivity with which the originalist claim is applied. As illustrated by Scalia’s work on the Second Amendment, in which he ignores George Washington’s frustration with non “well regulated” militias, Constitutional originalism can be as selective as Christian fundamentalism in its conception of originality and literalness. Christian fundamentalists, for example, tend to ignore the admonition in Romans 13 to submit to governing authorities, choosing instead to defy the state, when it does things that they don’t like.
The question of selectivity arises the most strongly, when one confronts what appear to be contradictory points in the text. What portion gets more weight? Any choice that one might make simply begs the question as to why it is better than that which was not chosen. The only way that one can choose between contradictory passages, found in a text viewed as sacred, is if one holds on to certain ideas that are regarded as even more fundamental than the texts, themselves.
On the constitutional side, for example, how does one balance the clauses of the Second Amendment? Which clause gets precedence? And on the religious side, we have the example of John 6, in which Jesus tells his followers, “Very truly I tell you, unless you eat the flesh of the Son of Man and drink his blood, you have no life in you.” But, seven verses later, the author of the gospel says this: “On hearing it, many of his disciples said, ‘This is a hard teaching. Who can accept it?’”
Both Constitutional originalism and Christian fundamentalism have “hard texts” like this and the difficulties involved typically are resolved by making choices that reflect some underlying and overriding idea. What is never admitted, however, by either variety of fundamentalism, is the idea that the sacred texts, especially the “hard texts,” might simply be anachronistic.
Beyond its theorists and theories, Christian fundamentalism is given popular expression through a network of popular writers, something that we also see in the context of the Constitutional originalist program. Joseph Ellis’ latest book, “The Quartet,” about four of the American Founding Fathers, is a good example of this sort of popularization of the originalist message. (4)
Ellis’ quartet of Hamilton, Madison, George Washington and John Jay, is squarely within the original intent camp of Constitutional originalism. His thesis, typical of the genre, is that by looking at the original intent of the Founders, we should recognize the Constitution as sitting on a very high plateau, and if it is not quite as perfect a text as the Bible may be for Christian fundamentalists, it is very nearly so.
But, of course, the effort to popularize subjects like this is not the exclusive province of originalists and fundamentalists. Their opponents have also been getting into the game, one of the most prominent, with respect to the constitutional question, being David Lazare and his book The Frozen Republic. (5)
Given that, unlike Christian scriptures, any textual issues in the Constitution are quite minor, and given that it is a single document, not a compendium of several dozen books, the battle is joined primarily on the issue of original intent, or, to make it a bit more nuanced, original authorial mindset.
Lazare starts in on this when he notes the Founders themselves fetishized a certain interpretation of relations between various elements of British government, from the end of the Elizabethan era through the period of the Stuarts, as a general ideal of the unwritten British constitution.
The tripartite division of powers, as Lazare notes (along with many others), doesn’t owe as much to the essays of French philosopher Montesquieu, as is commonly thought, but stems largely from siding with the “Country” half of the Court-vs.-Country division of British politics. (6) This division partially preceded, and partially led to, the Whigs and Tories. As Lazare notes, the Constitutional authors had one interpretation of this history, or more specifically, one interpretation of one slice of this history. He shows that this interpretation came with the American colonists from Britain, and through a mix of their political mindset and their separation from the mother country, became ever more encased in amber.
Beyond the question, then, of whether we can determine what the mindset of the Founders – or the Biblical authors – was, there is the further and more important question of why we should be so concerned with it. After all, why should we think that the states of mind of people in the 18th century – in the case of the Founders – or the 1st century – in the case of the Biblical authors – will be of much use to us, given the very real likelihood that more often than not they will be anachronistic, given how much civilization has changed. Lazare makes precisely this point, by referencing something Ross Perot said in the 1992 presidential campaign.
“Keep in mind our Constitution predates the Industrial Revolution. Our founders did not know about electricity, the train, telephones, radio, television, automobiles, airplanes, rockets, nuclear weapons, satellites, or space exploration. There’s a lot they didn’t know about. It would be interesting to see what kind of document they’d draft today. Just keeping it frozen in time won’t hack it.” (7)
Admittedly, the idea of Ross Perot offering pearls of constitutional wisdom is interesting. But what he says here is true, and it forces us to realize that the idea of “original intent” is time-constrained.
Unfortunately, Constitutional originalists essentially pretend that books like Lazare’s, or writings of the likes of Akhil Reed Amar on constitutional theory, simply don’t exist.
All varieties of fundamentalism must face heresies. The first way of doing this may be simply to ignore them. With the constitutional version, if ignoring doesn’t work, the next step is to try to prove the heretics wrong, by way of a political version of religious dogmatic theology.
Heresies are typically divisible into two major types. There are heresies against the text, like Montanism, which allowed for future revelations by the Holy Spirit, and heresies against founding figures, like the many Christological heresies. (8) (9)
Constitutional heresy typically involves questioning the motives and character of the Founding Fathers. A common way of doing this is to raise questions about the Founders’ detachment or disinterest.
For Ellis, Charles Beard is one of the heresiarchs of this type of heresy and one that he cannot ignore. Beard’s magnum opus is “An Economic Interpretation of the Constitution of the United States.” (10) His thesis is that the Constitutional authors were not disinterested patriots, but rather had a vested economic interest in writing a conservative Constitution.
Beard’s thesis has been somewhat discredited, since the time of the publication of “An Economic Interpretation of the United States,” but while he and his followers among progressive historians may have overstated the importance of class issues, whether in the American Revolution or the Constitutional Revolution, they weren’t all wrong, regardless of what the Ellis’s of the world would like to think. Indeed, there’s been a resurgence of a more moderated version of Beard’s thesis, as noted by historians like Pauline Maier. If not for personal economic interest, it is arguable that for group economic, or perhaps socioeconomic, interests, the Constitutional movement was indeed conservative, self-interested, and not disinterested.
The other great heresy for Constitutional originalists is when historians question how well the Founders handled the issue of slavery.
Above, I mentioned “hard texts.” The interpretation of the Second Amendment is hard in a text-critical way. There are Biblical texts like this, whether in the New Testament, Old Testament/Tanakh, Mishnah, early Jewish targums, early Christian commentaries, etc. But in the case of slavery, what is hard is not so much the text – though the text is also hard on this front – but rather, the attitudes of the people who wrote it. The fundamentalist approach to this sort of situation is twofold.
The first approach is to ignore hard texts – and hard attitudes — whenever possible and as much as possible. The second approach is to do a reversal on the idea of “presentism” and argue that not only shouldn’t our current moral standards be applied to the people of earlier eras, but that contemporary ideas and solutions should not be applied either.
This is the approach that Ellis adopts with slavery. He maintains that the Founders had no options while wrestling with slavery and that they did not conceive of the moral issue in the way that we frame it today. Other defenders of Constitutional originalism have employed similar tactics in dealing with this issue.
However, given that Britain ended slavery, with the landmark Somerset vs. Stewart decision, in 1772, and given that a number of historians have cited this as having contributed to the American Revolution, it is not presentism, but realism, when we look at the issue of slavery, in modern terms. (11)
Ellis ignores several books that point out how deeply slavery was entrenched in the American economy, and which make explicit reference to the role that Somerset played in the Revolution. Gerald Horne’s The Counter-Revolution of 1776: Slave Resistance and the Origins of the United States of America is a very good starting point, discussing the role of the Somerset decision and other slavery-related factors in the American Revolution. (12) (That said, author Gerald Horne does stretch some points too far, I think.) Edward E. Baptist’s The Half Has Never Been Told: Slavery and the Making of American Capitalism takes the story from the Revolution, through the Constitutional Convention, and into the 19th century, in much more detail.
These three heresiarchs thus connect with earlier progressives in noting that not only did the Founders not handle the issue of slavery well, but the way they handled it was at least partly out of self-interest. Thus the two heresies regarding the Founders – involving economic self-interest and bad faith on slavery — connect.
The point is that all of these authors note that slavery is indeed a “hard issue” for U.S. history in general and Constitutional history in particular, and it’s one that cannot be swept away with fundamentalist approaches to political sacred texts.
It is in their responses to heresies like these – responses that either involve a disingenuous appeal to historical relativism or simply ignoring the heretical claim altogether — that Constitutional originalism and Christian fundamentalism are revealed as being little more than exercises in hagiography. Ultimately, it is hagiography that lies behind American exceptionalism, and the enshrinement of the Constitution as an immutable text; a hagiographic treatment of the text, following a hagiographic treatment of its authors and their intentions.
Steve Snyder is a newspaper editor and blogger with interests in matters philosophical, and the arts and nature, among other things.
- See James Simon, Lincoln and Chief Justice Taney: Slavery, Secession, and the President’s War Powers (New York: Simon & Schuster, 2006).
- Originalism: https://en.wikipedia.org/wiki/Originalism
- Fundamentalism: https://en.wikipedia.org/wiki/Fundamentalism
- Lazare review: https://www.goodreads.com/review/show/437559920
- Court vs. Country party background brief on Wikipedia: https://en.wikipedia.org/wiki/Country_Party_(Britain)
- Montanism: https://en.wikipedia.org/wiki/Montanism
- Major Christological heresies: https://en.wikipedia.org/wiki/List_of_Christian_heresies#Trinitarian.2FChristological
- Charles Beard explainer: https://en.wikipedia.org/wiki/An_Economic_Interpretation_of_the_Constitution_of_the_United_States
- Somerset decision: https://en.wikipedia.org/wiki/Somerset_v_Stewart
- Horne review: https://www.goodreads.com/review/show/1348310441
- Baptist review: https://www.goodreads.com/review/show/1228420550
- Empire of Cotton review: https://www.goodreads.com/review/show/1275888543