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What conservative Supreme Court justices get wrong about the Founders

Originalism makes fulfilling the Founders’ constitutional vision difficult

Ella Hall, a specialist in Books and Manuscripts at Sotheby's in New York, holds a 1787 printed copy of the U.S. Constitution on Sept. 17, 2021. (Richard Drew/AP)
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Several of the Supreme Court’s blockbuster end-of-term decisions, which cheered conservatives and horrified liberals, were largely based on “originalist” or “textualist” readings of the U.S. Constitution. In other words, the justices based their majority opinions on what they thought the Constitution meant at the time the Founders wrote it.

But there is an inherent problem with this philosophy: The Founders expected the document to grow and change over time, guided by new and better understandings of the world. Originalism makes achieving this vision far more difficult — if not impossible — in a polarized America.

In his 1932 book, “The Heavenly City of the Eighteenth-Century Philosophers,” historian Carl Lotus Becker argued that every historical era has a specific “climate of opinion” — or underlying framework that shapes how people see the world. For the Founders, it was the Age of Enlightenment (also called the Age of Reason).

Enlightenment thinkers knew that people (including themselves) were flawed, and therefore that it was absurd to think they could establish a perfect government. Yet they were also confident that rational processes could improve humanity. The logical, reasoned use of evidence in arguments and decision-making was critical. They sought to understand the absolute laws that governed both the natural world and ethical behavior within human society. Scientific, technological and social advances gave them cause for optimism.

A combination of concerted effort, study, critical examination of evidence and logical reasoning could improve humanity over time. As humanity improved itself, it would gradually and inevitably reach closer toward perfection. As Becker observed, Enlightenment thinkers “denied that miracles ever happened, but believed in the perfectibility of the human race.” Increased knowledge would necessitate human societies continually remaking their governmental structures and institutions to reach closer to perfection.

This sense of the world framed how the men who came to Philadelphia in 1787 — and their friends and colleagues who influenced their ideas — approached writing the Constitution.

James Madison — subsequently lauded as the “father of the Constitution” — bore the greatest responsibility for actually designing and writing the document. Still, he insisted it was not “the off-spring of a single brain,” but “the work of many heads and many hands.”

Alexander Hamilton — who advocated for an even stronger central government than his peers were willing to accept at the convention — played a minor role in drafting the final document, but joined Madison (and John Jay) in writing the Federalist Papers. These 85 essays, 51 of which Hamilton wrote, were published throughout 1787 and 1788 and strongly supported ratification of the Constitution by providing detailed justifications for all of its provisions. In the concluding essay (Federalist 85) Hamilton clearly stated that the Constitution was not perfect, but it needed to be ratified anyway to address the urgent needs of the new nation. He argued that it would be easier to pass individual amendments than to resume wrangling over the entire text.

Thomas Jefferson, who missed the constitutional convention because he was serving as a diplomatic minister in France at the time, most clearly expressed the belief that governing systems should necessarily change over time. He responded to both the new Constitution, as well as ongoing efforts by the French to change their government, on Sept. 6, 1789, in a letter to Madison. Jefferson argued that no group of people had the right to establish a system of government that would then be imposed upon future generations, writing that “no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation.”

Even Madison, the guiding voice behind the Constitution, understood that it would need to change. In fact, while drafting the Constitution, Madison had opposed the idea of including a declaration of individual rights, but as he participated in the debates over ratification, he came to see that it was needed. Thus, he shepherded amendments through the First Congress, in 1789, and three-fourths of the states ratified 10 of them, creating the Bill of Rights.

The immediate use of the amendment process demonstrated the Founders’ intent that the Constitution be a living, not static, document — as does the very language they embedded into the document itself. They concisely introduced their framework for the American republic with stirring phrases, such as: “We the People of the United States, in order to form a more perfect union ….” “More” was an important word choice. The Founders understood that their previous attempt, the Articles of Confederation, was a deeply flawed and insufficient document to meet the needs of the new nation. They also understood that while they needed to make improvements, they were incapable of creating perfection.

In fact, George Washington — whose presence in Philadelphia lent legitimacy to the convention and made the drafting of the new Constitution possible — reportedly told a colleague from Georgia that he doubted it would last for 20 years, certainly not in its original form and meaning.

The Founders knew that both they and their document were imperfect — after all, to ratify it, they needed to promise to revise it immediately with amendments ensuring individual rights. They also made numerous compromises and concessions to construct a document that all 13 colonies would support, most especially counting enslaved people toward representation and prohibiting Congress from banning the importation of enslaved people for 20 years to appease North Carolina, South Carolina and Georgia. The handful of anti-slavery delegates at the convention made the best compromises they could manage and held on to the hope that the nation would eventually embrace freedom for all people.

Their fellow delegates shared their hope and expectation that future generations would surpass them on the road toward perfection and would thus re-create the Constitution to be better than it was in their own time. They intended for some of that change to happen through the amendment process. But since enactment of the first 12 amendments in the Constitution’s first 17 years, it has generally proved to be extremely difficult to ratify additional amendments — with only two ratified in the past 50 years. Even the pivotal post-Civil War amendments were only possible because the South had seceded, creating an opening for passage either without Southern assent or as a condition of readmission to the Union. Some view this as a strength of the Constitution, but others see it as a weakness.

But the Founders also didn’t expect that all change would come from the amendment process. Instead, they included elastic terms and provisions whose meaning would change with time and provide flexibility to all three branches of government in the future. Given their subscription to enlightenment ideas, they would have expected that with time, Americans would have a better understanding of the world and the needs of society, and would apply that knowledge to the document they had created.

Those notions are antithetical to originalism, which applies the Constitution as it was in 1787 to the present. It makes a living Constitution far more difficult to achieve, especially in a polarized America where achieving the support of three-quarters of the states necessary to ratify an amendment is an exceedingly high bar. This hampers the growth that the Founders envisioned for the U.S. and threatens the vitality of the Constitution.

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