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Immaculate misconception and the Supreme Court

By Joseph J. Ellis
Friday, May 7, 2010; A25

Although we do not know whom President Obama will nominate to fill the Supreme Court vacancy created by the retirement of Justice John Paul Stevens, it is already clear that the Senate Judiciary Committee hearings will be the major political event of the summer.

These hearings have become highly partisan affairs over the past 30 years, and given the recent closed-ranks posture of the Republican opposition, we can expect all the sharp-edged political weapons to be deployed against the nominee. The chief weapon will be the claim that Supreme Court justices should interpret the Constitution as it was written, not impose their political or personal convictions on the semi-sacred text. Woe to the nominee who has left a paper trail that deviates from the original intentions of the Founders, or what a hostile Senate interrogator defines those intentions to be.

Yet the constitutional doctrine of original intent has always struck most historians of the founding era as rather bizarre. For they, more than most, know that the original framers of the Constitution harbored deep disagreements over the document's core provisions, that the debates in the state ratifying conventions further exposed the divisions of opinion on such seminal issues as federal vs. state jurisdiction, the powers of the executive branch, even whether there was -- or should be -- an ultimate arbiter of the purposefully ambiguous language of the document.

Moreover, several of the most prominent Founders changed their minds in the ensuing years. Perhaps the most dramatic example is James Madison, often called "the father of the Constitution." During the debates in Philadelphia, Madison was one of the most ardent advocates for federal sovereignty, going so far as to propose a federal veto over all state legislation. But slightly more than a decade later, he authored the Virginia Resolutions, the classic case for state sovereignty over all domestic policy, and later, much to his chagrin, the major reference in South Carolina's secessionist claims during the Nullification Crisis.

The doctrine of original intent rests on a set of implicit assumptions about the framers as a breed apart, momentarily allowed access to a set of timeless and transcendent truths. You don't have to believe that tongues of fire appeared over their heads during the debates. But the doctrine requires you to believe that the "miracle at Philadelphia" was a uniquely omniscient occasion when 55 mere mortals were permitted a glimpse of the eternal verities and then embalmed their insights in the document.

Any professional historian proposing such an interpretation today would be laughed off the stage. That four sitting justices on the Supreme Court -- Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito -- claim to believe in it, or some version of it, is truly strange. We might call it the Immaculate Conception theory of jurisprudence. Even more disconcerting is the fact that the very justices most disposed toward wrapping their opinions in the protective armor of original intent have consistently voted in support of the conservative political agenda championed by the Republican Party.

If we were to put the doctrine of original intent on trial, the most eloquent witness for the prosecution would be Thomas Jefferson. Here is what he wrote to a friend in 1816:

"Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did beyond amendment. . . . Let us follow no such examples, nor weakly believe that one generation is not as capable of taking care of itself, and of ordering its own affairs . . . Each generation is as independent of the one preceding, as that was of all which had gone before."

He was telling us, in his own lyrical way, that we are on our own. Jefferson would vote against any nominee who claimed merely to be an umpire calling balls and strikes in a strike zone already determined by the Founders.

Joseph J. Ellis, a professor of history at Mount Holyoke College, won the 2001 Pulitzer Prize in history for his book "Founding Brothers" and the National Book Award for "American Sphinx: The Character of Thomas Jefferson."

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