The Constitution — Origin, Meaning, Interpretation
The Formation of the Constitution
The creation of the United States Constitution — John Adams described the Constitutional Convention as “the greatest single effort of national deliberation that the world has ever seen”—was a seminal event in the history of human liberty. The story of that creation in the summer of 1787 is itself a significant aspect in determining the meaning of the document.
In June 1776, amid growing sentiment for American independence and after hostilities with the British army had commenced at Lexington, Massachusetts, Richard Henry Lee of Virginia introduced a resolution in the Second Continental Congress for the colonies to collectively dissolve political connections with Great Britain, pursue foreign alliances, and draft a plan of confederation. These actions resulted in the Declaration of Independence of 1776, the Franco-American Alliance of 1778, and the Articles of Confederation, which were proposed in 1777 and ratified in 1781.
From its conception, the inherent weaknesses of the Articles of Confederation made it awkward at best and unworkable at worst. Each state governed itself through elected representatives, and the state representatives in turn elected a weak national government. There was no independent executive, and the Congress lacked authority to impose taxes to cover national expenses. Because all thirteen colonies had to ratify amendments, one state’s refusal prevented structural reform; nine of thirteen states had to approve important legislation, which meant five states could thwart any major proposal. And although the Congress could negotiate treaties with foreign powers, all treaties had to be ratified by the states.
The defects of the Articles became more and more apparent during the “critical period” of 1781–1787. By the end of the war in 1783, it was clear that the new system was, as George Washington observed, “a shadow without the substance.” Weakness in international affairs and in the face of continuing European threats in North America, the inability to enforce the peace treaty or collect enough taxes to pay foreign creditors, and helplessness in quelling domestic disorder, such as Shays’s Rebellion—all intensified the drive for a stronger national government.
If that were not enough, the Americans faced an even larger problem. Absolutely committed to the idea of popular rule, they knew that previous attempts to establish such a government had almost always led to majority tyranny—that of the overbearing many disregarding the rights of the few. In The Federalist No. 10, James Madison famously described this as the problem of faction, the latent causes of which are “sown in the nature of man.” Previous solutions usually rendered government weak, and thus susceptible to all the problems with which the Founders were most concerned. This was the case in the individual states, which, dominated by their popular legislatures, routinely violated rights of property and contract and limited the independence of the judiciary.
In 1785, representatives from Maryland and Virginia, meeting at George Washington’s Mount Vernon to discuss interstate trade, requested a meeting of the states to discuss trade and commerce generally. Although only five states met at Annapolis in 1786, James Madison and Alexander Hamilton used the failed conference to issue a clarion call for a general convention of all the states “to render the constitution of government adequate to the exigencies of the Union.” After several states, including Virginia and Pennsylvania, chose delegates for the meeting, the Congress acquiesced with a narrower declaration that the “sole and express purpose” of the upcoming Convention would be to revise the Articles of Confederation.
The next year, from May 25 to September 17, 1787, state delegates met in what is now called Independence Hall, in Philadelphia, Pennsylvania—as it says in the Constitution’s Preamble—to “form a more perfect Union.” It was an impressive group. Not only were there leaders in the fight for independence, such as Roger Sherman and John Dickinson, and leading thinkers just coming into prominence, such as Madison, Hamilton, and Gouverneur Morris, but also already-legendary figures, such as Washington and Benjamin Franklin. Every state was represented, except for one: Rhode Island, fearful that a strong national government would injure its lucrative trade, opposed revising the Articles of Confederation and sent no delegates. Patrick Henry and Samuel Adams, both of whom opposed the creation of a strong central government, did not attend. Notably absent were John Jay, who was then U.S. secretary of foreign affairs, and John Adams and Thomas Jefferson, who were out of the country on government missions. Nonetheless, Jefferson described the gathering as “an assembly of demigods.”
As its first order of business, the delegates unanimously chose Washington as president of the Convention. Having initially hesitated in attending the Convention, once decided, Washington pushed the delegates to adopt “no temporizing expedient” but instead to “probe the defects of the Constitution to the bottom, and provide radical cures.” While they waited in Philadelphia for a quorum, Washington presided over daily meetings of the Virginia delegation (composed of Washington, George Mason, George Wythe, John Blair, Edmund Randolph, James McClurg, and James Madison) to consider strategy and the reform proposals that would become the plan presented at the outset of the Convention. Although he contributed to formal debate only once at the end of the Convention, Washington was actively involved throughout the three-and-a-half-month proceedings.
There were three basic rules of the Convention: voting was to be by state, with each state, regardless of size or population, having one vote; proper decorum was to be maintained at all times; and the proceedings were to be strictly secret. To encourage free and open discussion and debate, the Convention shifted back and forth between full sessions and meetings of the Committee of the Whole, a parliamentary procedure that allowed informal debate and flexibility in deciding and reconsidering individual issues. Although the Convention hired a secretary, the best records of the debate—and thus the most immediate source of the intended meaning of the clauses—are the detailed notes of Madison, which, in keeping with the pledge of secrecy, were not published until 1840.
As soon as the Convention agreed on its rules, Edmund Randolph of the Virginia delegation presented a set of fifteen resolutions, known as the Virginia Plan, which set aside the Articles of Confederation and created in its stead a supreme national government with separate legislative, executive, and judicial branches. This was largely the work of James Madison, who came to the Convention extensively prepared and well-versed in the ancient and modern history of republican government. (See his memorandum on the “Vices of the Political System of the United States.”) The delegates generally agreed on the powers that should be lodged in a national legislature, but disagreed on how the states and popular opinion should be reflected in it. Under the Virginia Plan, population would determine representation in each of the two houses of Congress.
To protect their equal standing, delegates from less-populous states rallied around William Paterson’s alternative New Jersey Plan to amend the Articles of Confederation, which would preserve each state’s equal vote in a one-house Congress with slightly augmented powers. When the delegates rejected the New Jersey Plan, Roger Sherman proffered what is often called “the Great Compromise” (or the Connecticut Compromise, after Sherman’s home state) that the House of Representatives would be apportioned based on population and each state would have an equal vote in the Senate. A special Committee of Eleven (one delegate from each state) elaborated upon the proposal, and then the Convention adopted it. As a precaution against having to assume the financial burdens of the smaller states, the larger states exacted an agreement that revenue bills could originate only in the House, where the more populous states would have greater representation.
In late July, a Committee of Detail (composed of John Rutledge of South Carolina, Edmund Randolph of Virginia, Nathaniel Gorham of Massachusetts, Oliver Ellsworth of Connecticut, and James Wilson of Pennsylvania) reworked the resolutions of the expanded Virginia Plan into a draft Constitution; the text now included a list of eighteen powers of Congress, a “necessary and proper” clause, and a number of prohibitions on the states. Over most of August and into early September, the Convention carefully worked over this draft and then gave it to a Committee of Style (William Johnson of Connecticut, Alexander Hamilton of New York, Gouverneur Morris of Pennsylvania, James Madison of Virginia, and Rufus King of Massachusetts) to polish the language. The notable literary quality of the Constitution, most prominently the language of the Preamble, is due to Morris’s influence. The delegates continued revising the final draft until September 17 (now celebrated as Constitution Day), when delegates signed the Constitution and sent it to the Congress of the Confederation, and the Convention officially adjourned.
Some of the original fifty-five delegates had returned home over the course of the summer and were not present at the Convention’s conclusion. Of the forty-one that were, only three delegates—Edmund Randolph and George Mason of Virginia and Elbridge Gerry of Massachusetts—opposed the Constitution and chose not to sign. Randolph (who had introduced the Virginia Plan) thought in the end that the Constitution was not sufficiently republican, and was wary of creating a single executive. Mason and Gerry (who later supported the Constitution and served in the First Congress) were concerned about the lack of a declaration of rights. Despite these objections, George Washington thought that it was “little short of a miracle” that the delegates had agreed on a new Constitution. Thomas Jefferson, who was also concerned about the lack of a bill of rights, nevertheless wrote that the Constitution “is unquestionably the wisest ever yet presented to men.”
On September 28, Congress sent the Constitution to the states to be ratified by popular conventions. See Article VII (Ratification). Delaware was the first state to ratify the Constitution, on December 7, 1787; the last of the thirteen original colonies to ratify was Rhode Island, on May 29, 1790, two-and-a-half years later. It was during the ratification debate in the state of New York that Hamilton, Madison, and John Jay wrote a series of newspaper essays under the pen name of Publius, later collected in book form as The Federalist, to refute the arguments of the Anti-Federalist opponents of the proposed Constitution. With the ratification by the ninth state—New Hampshire, on June 21, 1788—Congress passed a resolution to make the new Constitution operative, and set dates for choosing presidential electors and the opening session of the new Congress.
There had been some discussion among the delegates of the need for a bill of rights, a proposal that was rejected by the Convention. The lack of a bill of rights like that found in most state constitutions, however, became a rallying cry for the Anti-Federalists, and the advocates of the Constitution (led by James Madison) agreed to add one in the first session of Congress. Ratified on December 15, 1791, the first ten amendments—called the Bill of Rights—include sweeping restrictions on the federal government and its ability to limit certain fundamental rights and procedural matters. The Ninth and Tenth Amendments briefly encapsulate the twofold theory of the Constitution: the purpose of the Constitution is to protect rights, which stem not from the government but from the people themselves; and the powers of the national government are limited to only those delegated to it by the Constitution on behalf of the people.
In addition to the provisions of the document, three important unstated mechanisms are at work in the Constitution: the extended Republic, the separation of powers, and federalism. The Founders believed that citizen virtue was crucial for the success of republican government but they knew that passion and interest were permanent parts of human nature and could not be controlled by parchment barriers alone. “A dependence on the people is, no doubt, the primary control on the government,” Madison explained in The Federalist No. 51, “but experience has taught mankind the necessity of auxiliary precautions.” Rather than hoping for the best, the Founders designed a system that would harness these opposite and rival interests to supply “the defect of better motives.”
The effect of representation—of individual citizens being represented in the government rather than ruling through direct participatory democracy—is to refine and moderate public opinion through a deliberative process. Extending the Republic, literally increasing the size of the nation, would take in a greater number and variety of opinions, making it harder for a majority to form on narrow interests contrary to the common good. The majority that did develop would be more settled and, by necessity, would encompass (and represent) a wider diversity of opinion. This idea that bigger is better reversed the prevailing assumption that republican government could work only in small states.
The Founders also knew, again as Madison explained in The Federalist No. 48, that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” In order to distribute power and prevent its accumulation, they created three separate branches of government, each performing its own functions and duties and sharing a few powers—as when the President shares the legislative power through the veto—so that they would have an incentive to check each other. Jefferson called the “republican form and principles of our Constitution” and “the salutary distribution of powers” in the Constitution the “two sheet anchors of our Union.” “If driven from either,” he predicted, “we shall be in danger of foundering.”
And although national powers were clearly enhanced by the Constitution, the federal government was to exercise only delegated powers, the remainder being reserved to the states or the people. Despite the need for additional national authority, the Framers remained distrustful of government in general and of a centralized federal government in particular. “The powers delegated by the proposed Constitution to the federal government are few and defined,” Madison wrote in The Federalist No. 45. “Those which are to remain in the State governments are numerous and indefinite.” To give the states more leverage against the national government, equal state representation in the Senate was blended into the national legislature (and guaranteed in Article V). “This balance between the National and State governments ought to be dwelt on with peculiar attention, as it is of the utmost importance,” Hamilton argued at the New York state ratifying convention. “It forms a double security to the people. If one encroaches on their rights they will find a powerful protection in the other. Indeed, they will both be prevented from overpassing their constitutional limits by a certain rivalship, which will ever subsist between them.”
When the Constitutional Convention assembled on the morning of September 17, 1787, the completed document was read aloud to the delegates for one last time. Thereupon Benjamin Franklin, the eighty-one-year-old patriarch of the group, rose to speak. He declared his support for the new Constitution—”with all its faults, if they are such”—because he thought a new government was necessary for the young nation. Franklin continued:
“I doubt too whether any other convention we can obtain may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an Assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does; and I think it will astonish our enemies. . . . Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best.”
As the delegates came forward, one at a time, to sign their names to the final document, Madison recorded Franklin’s final comment, just before the Constitutional Convention was dissolved. Referring to the sun painted on the back of Washington’s chair, Franklin said that he had often in the course of the Session, and the vicissitudes of my hopes and fears as to its issue, looked at that behind the President without being able to tell whether it was rising or setting. But now at length I have the happiness to know that it is a rising and not a setting Sun.
“The business being thus closed,” George Washington recorded in his private diary, the delegates proceeded to City Tavern, where they dined together and took a cordial leave of each other; after which I returned to my lodgings, did some business with and received the papers from the Secretary of the Convention, and retired to meditate on the momentous work which had been executed. . . .
Vice President, American Studies
Director, B. Kenneth Simon Center for Principles and Politics
The Heritage Foundation
The Meaning of the Constitution
The Constitution of the United States has endured for over two centuries. It remains the object of reverence for nearly all Americans and an object of admiration by peoples around the world. William Gladstone was right in 1878 when he described the U.S. Constitution as “the most wonderful work ever struck off at a given time by the brain and purpose of man.”
Part of the reason for the Constitution‘s enduring strength is that it is the complement of the Declaration of Independence. The Declaration provided the philosophical basis for a government that exercises legitimate power by “the consent of the governed,” and it defined the conditions of a free people, whose rights and liberty are derived from their Creator. The Constitution delineated the structure of government and the rules for its operation, consistent with the creed of human liberty proclaimed in the Declaration.
Justice Joseph Story, in his Familiar Exposition of the Constitution (1840), described our Founding document in these terms:
“We shall treat [our Constitution], not as a mere compact, or league, or confederacy, existing at the mere will of any one or more of the States, during their good pleasure; but, (as it purports on its face to be) as a Constitution of Government, framed and adopted by the people of the United States, and obligatory upon all the States, until it is altered, amended, or abolished by the people, in the manner pointed out in the instrument itself.”
By the diffusion of power—horizontally among the three separate branches of the federal government, and vertically in the allocation of power between the central government and the states—the Constitution‘s Framers devised a structure of government strong enough to ensure the nation’s future strength and prosperity but without sufficient power to threaten the liberty of the people.
The Constitution and the government it establishes “has a just claim to [our] confidence and respect,” George Washington wrote in his Farewell Address (1796), because it is “the offspring of our choice, uninfluenced and unawed, adopted upon full investigation and mature deliberation, completely free in its principles, in the distribution of its powers uniting security with energy, and containing, within itself, a provision for its own amendment.”
The Constitution was born in crisis, when the very existence of the new United States was in jeopardy. The Framers understood the gravity of their task. As Alexander Hamilton noted in the general introduction to The Federalist,
[A]fter an unequivocal experience of the inefficacy of the subsisting federal government, [the people] are called upon to deliberate on a new Constitution for the United States of America. The subject speaks its own importance; comprehending in its consequences nothing less than the existence of the Union, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world.
Several important themes permeated the completed draft of the Constitution. The first, reflecting the mandate of the Declaration of Independence, was the recognition that the ultimate authority of a legitimate government depends on the consent of a free people. Thomas Jefferson had set forth the basic principle in his famous formulation:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men deriving their just powers from the consent of the governed.
That “all men are created equal” means that they are equally endowed with unalienable rights. Nature does not single out who is to govern and who is to be governed; there is no divine right of kings. Nor are rights a matter of legal privilege or the benevolence of some ruling class. Fundamental rights exist by nature, prior to government and conventional laws. It is because these individual rights are left unsecured that governments are instituted among men.
Consent is the means by which equality is made politically operable and whereby arbitrary power is thwarted. The natural standard for judging if a government is legitimate is whether that government rests on the consent of the governed. Any political powers not derived from the consent of the governed are, by the laws of nature, illegitimate and hence unjust.
The “consent of the governed” stands in contrast to “the will of the majority,” a view more current in European democracies. The “consent of the governed” describes a situation where the people are self-governing in their communities, religions, and social institutions, and into which the government may intrude only with the people’s consent. There exists between the people and limited government a vast social space in which men and women, in their individual and corporate capacities, may exercise their self-governing liberty. In Europe, the “will of the majority” signals an idea that all decisions are ultimately political and are routed through the government. Thus, limited government is not just a desirable objective; it is the essential bedrock of the American polity.
A second fundamental element of the Constitution is the concept of checks and balances. As James Madison famously wrote in The Federalist No. 51,
“In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place oblige it to controul itself. A dependence on the people is, no doubt, the primary controul on the government; but experience has taught mankind necessity of auxiliary precautions.
These “auxiliary precautions” constitute the improved science of politics offered by the Framers and form the basis of their “Republican remedy for the diseases most incident to Republican Government” (The Federalist No. 10).
The “diseases most incident to Republican Government” were basically two: democratic tyranny and democratic ineptitude. The first was the problem of majority faction, the abuse of minority or individual rights by an “interested and overbearing” majority. The second was the problem of making a democratic form of government efficient and effective. The goal was limited but energetic government. The constitutional object was, as the late constitutional scholar Herbert Storing said, “a design of government with the powers to act and a structure to make it act wisely and responsibly.”
The particulars of the Framers’ political science were catalogued by Madison’s celebrated collaborator in The Federalist, Alexander Hamilton. Those particulars included such devices as representation, bicameralism, independent courts of law, and the “regular distribution of powers into distinct departments,” as Hamilton put it in The Federalist No. 9; these were “means, and powerful means, by which the excellencies of republican government may be retained and its imperfections lessened or avoided.”
Central to their institutional scheme was the principle of separation of powers. As Madison bluntly put it in The Federalist No. 47, the “preservation of liberty requires that the three great departments of power should be separate and distinct,” for, as he also wrote, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny.”
Madison described in The Federalist No. 51 how structure and human nature could be marshaled to protect liberty:
“ [T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives to resist encroachments of the others.”
Thus, the separation of powers frustrates designs for power and at the same time creates an incentive to collaborate and cooperate, lessening conflict and concretizing a practical community of interest among political leaders.
Equally important to the constitutional design was the concept of federalism. At the Constitutional Convention there was great concern that an overreaction to the inadequacies of the Articles of Confederation might produce a tendency toward a single centralized and all-powerful national government. The resolution to such fears was, as Madison described it in The Federalist, a government that was neither wholly federal nor wholly national but a composite of the two. A half-century later, Alexis de Tocqueville would celebrate democracy in America as precisely the result of the political vitality spawned by this “incomplete” national government.
The institutional design was to divide sovereignty between two different levels of political entities, the nation and the states. This would prevent an unhealthy concentration of power in a single government. It would provide, as Madison said in The Federalist No. 51, a “double security . . . to the rights of the people.” Federalism, along with separation of powers, the Framers thought, would be the basic principled matrix of American constitutional liberty. “The different governments,” Madison concluded, “will controul each other; at the same time that each will be controulled by itself.”
But institutional restraints on power were not all that federalism was about. There was also a deeper understanding—in fact, a far richer understanding—of why federalism mattered. When the delegates at Philadelphia convened in May 1787 to revise the ineffective Articles of Confederation, it was a foregone conclusion that the basic debate would concern the proper role of the states. Those who favored a diminution of state power, the Nationalists, saw unfettered state sovereignty under the Articles as the problem; not only did it allow the states to undermine congressional efforts to govern, it also rendered individual rights insecure in the hands of “interested and overbearing majorities.” Indeed, Madison, defending the Nationalists’ constitutional handiwork, went so far as to suggest in The Federalist No. 51 that only by way of a “judicious modification” of the federal principle was the new Constitution able to remedy the defects of popular, republican government.
The view of those who doubted the political efficacy of the new Constitution was that good popular government depended quite as much on a political community that would promote civic or public virtue as on a set of institutional devices designed to check the selfish impulses of the majority. As Herbert Storing has shown, this concern for community and civic virtue tempered and tamed somewhat the Nationalists’ tendency toward simply a large nation. Their reservations, as Storing put it, echo still through our political history.
It is this understanding, that federalism can contribute to a sense of political community and hence to a kind of public spirit, that is too often ignored in our public discussions about federalism. But in a sense, it is this understanding that makes the American experiment in popular government truly the novel undertaking the Framers thought it to be.
At bottom, in the space left by a limited central government, the people could rule themselves by their own moral and social values, and call on local political institutions to assist them. Where the people, through the Constitution, did consent for the central government to have a role, that role would similarly be guided by the people’s sense of what was valuable and good as articulated through the political institutions of the central government. Thus, at its deepest level popular government means a structure of government that rests not only on the consent of the governed, but also on a structure of government wherein the views of the people and their civic associations can be expressed and translated into public law and public policy, subject, of course, to the limits established by the Constitution. Through deliberation, debate, and compromise, a public consensus is formed about what constitutes the public good. It is this consensus on fundamental principles that knits individuals into a community of citizens. And it is the liberty to determine the morality of a community that is an important part of our liberty protected by the Constitution.
In The Heritage Guide to the Constitution, we seek to present the Founders’ understanding of the Constitution and its various provisions, and examine the judicial interpretations and political circumstances that make up the historical development of constitutional law.
The Constitution is our most fundamental law. It is, in its own words, “the supreme Law of the Land.” Its translation into the legal rules under which we live occurs through the actions of all government entities, federal and state. The entity we know as “constitutional law” is the creation not only of the decisions of the Supreme Court, but also of the various Congresses and of the President.
Yet it is the court system, particularly the decisions of the Supreme Court, that most observers identify as providing the basic corpus of “constitutional law.” This body of law, this judicial handiwork, is, in a fundamental way, unique in our scheme, for the Court is charged routinely, day in and day out, with the awesome task of addressing some of the most basic and most enduring political questions that face our nation. The answers the Court gives are very important to the stability of the law so necessary for good government. But as constitutional historian Charles Warren once noted, what is most important to remember is that “however the Court may interpret the provisions of the Constitution, it is still the Constitution which is the law, not the decisions of the Court.”
By this, of course, Warren did not mean that a constitutional decision by the Supreme Court lacks the character of binding law. He meant that the Constitution remains the Constitution and that observers of the Court may fairly consider whether a particular Supreme Court decision was right or wrong. There remains in the country a vibrant and healthy debate among the members of the Supreme Court, as articulated in its opinions, and between the Court and academics, politicians, columnists and commentators, and the people generally, on whether the Court has correctly understood and applied the fundamental law of the Constitution. We have seen throughout our history that when the Supreme Court greatly misconstrues the Constitution, generations of mischief may follow. The result is that, of its own accord or through the mechanism of the appointment process, the Supreme Court may come to revisit some of its doctrines and try, once again, to adjust its pronouncements to the commands of the Constitution.
This recognition of the distinction between constitutional law and the Constitution itself produces the conclusion that constitutional decisions, including those of the Supreme Court, need not be seen as the last words in constitutional construction. A correlative point is that constitutional interpretation is not the business of courts alone but is also, and properly, the business of all branches of government. Each of the three coordinate branches of government created and empowered by the Constitution—the executive and legislative no less than the judicial—has a duty to interpret the Constitution in the performance of its official functions. In fact, every official takes a solemn oath precisely to that effect. Chief Justice John Marshall, in Marbury v. Madison (1803), noted that the Constitution is a limitation on judicial power as well as on that of the executive and legislative branches. He reiterated that view in McCullough v. Maryland (1819) when he cautioned judges never to forget it is a constitution they are expounding.
The Constitution—the original document of 1787 plus its amendments—is and must be understood to be the standard against which all laws, policies, and interpretations should be measured. It is our fundamental law because it represents the settled and deliberate will of the people, against which the actions of government officials must be squared. In the end, the continued success and viability of our democratic Republic depends on our fidelity to, and the faithful exposition and interpretation of, this Constitution, our great charter of liberty.
Edwin Meese , III
Ronald Reagan Distinguished Fellow in Public Policy
Chairman of the Center for Legal and Judicial Studies
The Heritage Foundation
The Originalist Perspective
Written constitutionalism implies that those who make, interpret, and enforce the law ought to be guided by the meaning of the United States Constitution—”the supreme law of the land”—as it was originally written. This view came to be seriously eroded over the course of the last century with the rise of the theory of the Constitution as a “living document” with no fixed meaning, subject to changing interpretations according to the spirit of the times.
In 1985, Attorney General Edwin Meese III delivered a series of speeches challenging the then-dominant view of constitutional jurisprudence and calling for judges to embrace a “jurisprudence of original intention.” There ensued a vigorous debate in the academy, as well as in the popular press, and in Congress itself over the prospect of an “originalist” interpretation of the Constitution. Some critics found the idea too vague to be pinned down; others believed that it was impossible to find the original intent that lay behind the text of the Constitution. Some rejected originalism in principle, as undemocratic (though it is clear that the Constitution was built upon republican rather than democratic principles), unfairly binding the present to the choices of the past.
As is often the case, the debate was not completely black and white. Some nonoriginalists do not think that the Framers intended anything but the text of the Constitution to be authoritative, and they hold that straying beyond the text to the intentions of various Framers is not an appropriate method of interpretation. In that, one strain of originalism agrees. On the other hand, many prominent nonoriginalists think that it is not the text of the Constitution per se that ought to be controlling but rather the principles behind the text that can be brought to bear on contemporary issues in an evolving manner.
Originalism, in its various and sometimes conflicting versions, is today the dominant theory of constitutional interpretation. On the one hand, as complex as an originalist jurisprudence may be, the attempt to build a coherent nonoriginalist justification of Supreme Court decisions (excepting the desideratum of following stare decisis, even if the legal principle had been wrongly begun) seems to have failed. At the same time, those espousing originalism have profited from the criticism of nonoriginalists, and the originalist enterprise has become more nuanced and self-critical as research into the Founding period continues to flourish. Indeed, it is fair to say that this generation of scholars knows more about what went into the Constitution than any other since the time of the Founding. To paraphrase Thomas Jefferson, in a significant sense “we are all originalists” now.
This is true of both “liberal” and “conservative” judges. For example, in United States Term Limits, Inc. v. Thornton (1995), Justices John Paul Stevens and Clarence Thomas engaged in a debate over whether the Framers intended the Qualifications Clauses (Article I, Section 2, Clause 2 and Article I, Section 3, Clause 3) to be the upper limit of what could be required of a person running for Congress. In Wallace v. Jaffree (1985), Justice William H. Rehnquist expounded on the original understanding of the Establishment Clause (Amendment I), which Justice David Souter sought to rebut in Lee v. Weisman (1992). Even among avowed originalists, fruitful debate takes place. In McIntyre v. Ohio Elections Commission (1995), Justices Thomas and Antonin Scalia disputed whether the anonymous pamphleteering of the Founding generation was evidence that the free speech guarantee of the First Amendment was meant to protect such a practice.
Originalism is championed for a number of fundamental reasons. First, it comports with the nature of a constitution, which binds and limits any one generation from ruling according to the passion of the times. The Framers of the Constitution of 1787 knew what they were about, forming a frame of government for “ourselves and our Posterity.” They did not understand “We the people” to be merely an assemblage of individuals at any one point in time but a “people” as an association, indeed a number of overlapping associations, over the course of many generations, including our own. In the end, the Constitution of 1787 is as much a constitution for us as it was for the Founding generation.
Second, originalism supports legitimate popular government that is accountable. The Framers believed that a form of government accountable to the people, leaving them fundamentally in charge of their own destinies, best protected human liberty. If liberty is a fundamental aspect of human nature, then the Constitution of 1787 should be defended as a successful champion of human freedom. Originalism sits in frank gratitude for the political, economic, and spiritual prosperity midwifed by the Constitution and the trust the Constitution places in the people to correct their own errors.
Third, originalism accords with the constitutional purpose of limiting government. It understands the several parts of the federal government to be creatures of the Constitution, and to have no legitimate existence outside of the Constitution. The authority of these various entities extends no further than what was devolved upon them by the Constitution. “[I]n all free States the Constitution is fixd,” Samuel Adams wrote, “& as the supreme Legislative derives its Power & Authority from the Constitution, it cannot overleap the Bounds of it without destroying its own foundation.”
Fourth, it follows that originalism limits the judiciary. It prevents the Supreme Court from asserting its will over the careful mix of institutional arrangements that are charged with making policy, each accountable in various ways to the people. Chief Justice John Marshall, overtly deferring to the intention of the Framers, insisted that “that the framers of the Constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature.” In words that judges and academics might well contemplate today, Marshall said,
“Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!” (Marbury v. Madison)
Fifth, supported by recent research, originalism comports with the understanding of what our Constitution was to be by the people who formed and ratified that document. It affirms that the Constitution is a coherent and interrelated document, with subtle balances incorporated throughout. Reflecting the Founders’ understanding of the self-motivated impulses of human nature, the Constitution erected devices that work to frustrate those impulses while leaving open channels for effective and mutually supporting collaboration. It is, in short, a remarkable historical achievement, and unbalancing part of it could dismantle the sophisticated devices it erected to protect the people’s liberty.
Sixth, originalism, properly pursued, is not result-oriented, whereas much nonoriginalist writing is patently so. If evidence demonstrates that the Framers understood the commerce power, for example, to be broader than we might wish, then the originalist ethically must accept the conclusion. If evidence shows that the commerce power was to be more limited than it is permitted to be today, then the originalist can legitimately criticize governmental institutions for neglecting their constitutional duty. In either case, the originalist is called to be humble in the face of facts. The concept of the Constitution of 1787 as a good first draft in need of constant revision and updating—encapsulated in vague phrases such as the “living Constitution“—merely turns the Constitution into an unwritten charter to be developed by the contemporary values of sitting judges.
Discerning the Founders’ original understanding is not a simple task. There are the problems of the availability of evidence; the reliability of the data; the relative weight of authority to be given to different events, personalities, and organizations of the era; the relevance of subsequent history; and the conceptual apparatus needed to interpret the data. Originalists differ among themselves on all these points and sometimes come to widely divergent conclusions. Nevertheless, the values underlying originalism do mean that the quest, as best as we can accomplish it, is a moral imperative.
How does one go about ascertaining the original meaning of the Constitution? All originalists begin with the text of the Constitution, the words of a particular clause. In the search for the meaning of the text and its legal effect, originalist researchers variously look to the following:
- The evident meaning of the words.
- The meaning according to the lexicon of the times.
- The meaning in context with other sections of the Constitution.
- The meaning according to the words by the Framer suggesting the language.
- The elucidation of the meaning by debate within the Constitutional Convention.
- The historical provenance of the words, particularly their legal history.
- The words in the context of the contemporaneous social, economic, and political events.
- The words in the context of the revolutionary struggle.
- The words in the context of the political philosophy shared by the Founding generation, or by the particular interlocutors at the Convention.
- Historical, religious, and philosophical authority put forward by the Framers.
- The commentary in the ratification debates.
- The commentary by contemporaneous interpreters, such as Publius in The Federalist.
- The subsequent historical practice by the Founding generation to exemplify the understood meaning (e.g., the actions of President Washington, the First Congress, and Chief Justice Marshall).
- Early judicial interpretations.
- Evidence of long-standing traditions that demonstrate the people’s understanding of the words.
As passed down by William Blackstone and later summarized by Joseph Story, similar interpretive principles guided the Framing generation itself. It is the legal effect of the words in the text that matters, and its meaning is to be determined by well-known and refined rules of interpretation supplemented, where helpful, by the understanding of those who drafted the text and the legal culture within which they operated. As Chief Justice Marshall put it,
“To say that the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers; — is to repeat what has been already said more at large, and is all that can be necessary.” (Ogden v. Saunders, Marshall, C. J., dissenting, 1827)
Marshall’s dialectical manner of parsing a text, seeking its place in the coherent context of the document, buttressed by the understanding of those who drafted it and the generally applicable legal principles of the time are exemplified by his classic opinions in Marbury v. Madison (1803), McCulloch v. Maryland (1819), Gibbons v. Ogden (1824), and Barron v. Baltimore (1833). Both Marshall’s ideological allies and enemies, such as Alexander Hamilton and Thomas Jefferson, utilized the same method of understanding.
Originalism does not remove controversy, or disagreement, but it does cabin it within a principled constitutional tradition that makes real the Rule of Law. Without that, we are destined, as Aristotle warned long ago, to fall into the “rule of men.”
With its format of brief didactic essays, the work that follows does not seek to be a thorough defense of originalism against its critics, nor does it choose which strains of originalism or which authorities are to be accorded greater legitimacy than others. But it does respect the originalist endeavor. Each contributor was asked to include a description of the original understanding of the meaning of the clause, as far as it can be determined, and to note and explain any credible and differing originalist interpretations.
It is within this tradition that this volume is respectfully offered to the consideration of the reader.
David F. Forte
Professor of Law
Cleveland-Marshall College of Law