Supreme Court originalists are fundamentally wrong about history

What about the originalists’ second assumption, that the meaning of the Constitution is immutable? Gienapp argues that Americans in the founding era believed its meaning was fixed AND is evolving. For example, James Madison wrote Federalist documents in 1788 that “All New Laws” are “more or less obscure and ambiguous until their meaning has been eliminated and confirmed by a series of detailed discussions and judgments.” He repeated in 1819 that “the elimination and determination of the meaning of certain terms may require regular practice.” Actual legal and political “discussions” and concrete political “practice” will develop constitutional meaning over time.

The idea that the Constitution is both permanent and evolving is not self-contradictory. Gienappa’s brilliant first book, Second Creation, explored the idea of ​​constitutional permanence in depth in the 1780s and 1790s. He showed that men like Madison would agree with leading jurist Matthew Hale, who explained in 1713 that although “usage and custom” cause “variations” in the law, they are nevertheless “the same English laws that were in force now in 600 A.D. Many years have passed. The law, Hale said, was like “the ship of the Argonauts” – he meant the ship of Theseus – which “was the same when it came home as when it went out, although it made further adjustments during its long voyage, and it rarely returned from any of your previous Materials. In the same way, the Constitution could be amended and remain the same at the same time.

Finally, Gienapp argues that originalists wrongly assume that the Constitution would be viewed as law like other laws. He says many Americans would see it as “a document intended for the citizen, not the lawyer” and would believe it should be read in a less legalistic and more popular way – especially by strengthening the power of the legislature, rather than the courts, to interpret the Constitution. It took Federalists like Chief Justice John Marshall years to turn the Constitution into a legalized document. And even then, his political opponents pushed back by promoting an anti-legalist perspective. Thomas Jefferson, for example, argued in 1820 that making judges “the final arbiters of all constitutional questions” was a “very dangerous doctrine” that would “submit us to the despotism of an oligarchy.” “The people themselves,” Jefferson said, were the only “safe depository of the ultimate power of society.”