What Would Madison Think of Originalism? Depends When You Asked Him
The Supreme Court seems poised to overturn Roe v. Wade, an almost 50-year-old precedent which established a women’s right to choose to have an abortion. Abortion is an issue fraught with moral implications and perhaps the most personal decision a woman can make. But my concern in this article is with the unraveling of precedent based upon a judicial philosophy known as originalism. In July of 2018 I wrote an article for the History News Network about the dangers of originalism. If the court overturns Roe, those dangers will have come to fruition, potentially endangering rights for women and minorities that have evolved since the Constitution was written and amended.
By way of background, Justice Alito, in his draft decision, wrote that “the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” Yet many powers and rights are not mentioned in the Constitution, yet have a long history of constitutional protection. Programs like social security and Medicare are nowhere mentioned in the Constitution, nor is the right to privacy or to marry whom one chooses, yet each of these powers and rights has been found to be constitutional. One of our founding fathers, James Wilson of Pennsylvania, had grave concerns about adding a bill of rights to the Constitution. Wilson was concerned “that if the enumeration is not complete, everything not expressly mentioned will be presumed to be purposely omitted.”
Alito himself acknowledges the problem, writing that unenumerated powers or rights must be “deeply rooted in this nation’s history and tradition.” Yet in Alito’s mind, 50 years of history are not sufficient to establish abortion as an implied right. Originalists like Alito rely heavily on historical analysis, yet they shade history to find the results they prefer. Others have written of the problems with Alito’s historical analysis, including Aaron Tang at the University of California Davis and Peggy Cooper Davis of N.Y.U. Many scholars call Alito’s analysis “law office history” which “assumes that the suppression of evidence harmful to your client is not only permissible but professionally obligatory,” as Joseph Ellis has written.
What is originalism? It is the idea that “the Constitution should be interpreted in accordance with its original meaning---that is the meaning at the time of its enactment,” according to the Center for the Study of Originalism at the University of San Diego. Originalism sounds like it dates back to our founding but in fact it is a recent concept introduced in 1983. One of the major flaws of originalism is the idea that there was one meaning of the Constitution at the time it was written or amended. But this is clearly false. Rather, the founders had disagreements among themselves over its meaning. John Marshall, the great Chief Justice of the Supreme Court, wrote that “historians can never forget that it is a debate they are interpreting.”
The inability to recognize the extent to which the Founding Fathers argued among themselves is a major flaw in the conservative case for originalism since it is dependent on the theory that people in the 18th century shared a common interpretation of the Constitution. In fact they did not, as one of the earliest debates over the meaning of the Constitution shows. That debate and its later aftermath also shows that James Madison, known as the Father of the Constitution, allowed precedent to change his original understanding of the Constitution.
In December of 1790, Treasury Secretary Alexander Hamilton proposed the creation of the Bank of the United States. Madison took the position that Congress had no power to charter a bank since no such power was enumerated in the Constitution. President Washington was confronted with a major dilemma, with two of his primary advisors now at odds. Hoping to find an answer, he asked Secretary of State Thomas Jefferson and Edmund Randolph, the Attorney General, to provide their opinion on the constitutionality of the bank. Both sided with Madison, in what has become known as the strict constructionist view. Washington then provided Jefferson’s opinion to Hamilton, who put forward what one of his biographers has called “the most brilliant argument for a broad interpretation of the Constitution in American political literature.” Hamilton posited that the necessary and proper clause gave Congress the means to carry out all of its ends, even if the specific power was not listed in the document. Ultimately Congress passed and the president signed the bank bill.
In the aftermath of the War of 1812, Madison changed his mind about the need for a national bank. In a message to Congress in 1815, Madison explained that he no longer opposed a national bank, since “repeated recognitions…of the validity of such an institution, in acts of the legislature, executive, and judicial branches of government” and also by “the general will of the nation” had remove his doubt about whether the bank was constitutional. As the Madisonian scholar Jack Rakove has written, “Madison thus allowed precedents set since 1789 to revise his own original understanding of the Constitution.”
Essentially Madison came to his conclusion not only because the bank had existed for so long but also because the public had come to accept it. One could say that Madison was, in fact, an adherent of the concept of the living Constitution, in which the meaning of the document evolves over time as standards of justice change. Jefferson too thought it ludicrous that one generation should be beholden to another for its basic laws. “We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain under the regimen of their barbarous ancestors.” The living Constitution is an approach grounded in precedent, “which allows us to meet the demands of today, not force us to follow the commands of the long-dead Founders,” as the constitutional scholar David A. Strauss has written.
The mantle of originalism allows judges like Alito to pretend that their interpretation of the Constitution is grounded in an objective standard, but as we have seen, this is historically inaccurate. Instead, originalism represents a way to overturn longstanding precedents which many in the conservative movement detest. The use of originalism not only threatens a women’s right to choose an abortion, but could ultimately move the nation backwards, taking away now long-established rights that could include gay and interracial marriage, contraception, even the right to privacy. We would be better served to follow the approach of James Madison.