The Feld-Blog

The Originalism or Strict Constructionism touted by Antonin Scalia and Clarence Thomas seems appealing in theory. Whether or not you agree with their conclusions, it seems logical that, in order to faithfully interpret specific clauses of the constitution, we must think of the language the same way the authors would have thought of it. Still, when analyzed empirically strict constructionism may be as prone to whimsy as the doctrine of a "living constitution" often attributed to more liberal judges.

In reading some of Scalia's or Thomas' opinions, it seems they claim to hold the definitive answers to what the framers intended when they wrote certain clauses of the constitution. This argument is weak on many levels however. First of all, the historical information we have about how the framer's would have interpreted the constitution is sparse and perhaps biased since it is almost exclusively written by James Madison.

Furthermore, to claim that the original interpretation of this document hold the sole authority on contemporary decisions is an appeal to the idea that Americans ratified the constitution, thus legitimizing its authority through the idea of popular sovereignty. On this assumption, the popular understanding of the meaning of these clauses should hold the sole authority rather than the intentions of the framers. This information is even sparser and dramatically more biased since most of the documents we have which speak to this understanding were published in the midst of a campaign for and against constitutional ratification. Thus is carries with it a not-so-subtle undercurrent of propaganda. Though much of this information helps put constitutional decisions and understandings in context, it certainly isn't sufficient evidence to draw a definitive conclusion as to the "correct" interpretation of any part of the constitution.

Thanks to Pulitzer Prize winning author and historian Jack Rakove whose class I am taking and whose copious background in early American history has helped me find evidence for the nagging hunch I have had all along that Originalism is not quite as perfect as its proponents would have us believe. The debate over intention rages on, but still this should not be the be-all, end-all of constitutional interpretation. Finally, I would like to think that the framers, conscious as they were of the consequences their actions would have on all representative government to come, would have left some clauses intentionally vague to accommodate the changing culture-in-flux that they knew the Constitution would have to continue to govern for many years to come.

A Constitution that creates functional governmental structures to solve the problems and dilemmas of the day, but also articulates generalizable ideals and ideas to cope with the issues of the future would be the most effective governing document. I think the framers tried to do exactly that. Maybe we should give them that much credit. They spent a long time just discussing political philosophy. Let’s give them the benefit of the doubt that they did a good job. It seems to me that to subscribe to originalism means to subscribe to the idea that the framers were only concerned with their present and not our future. I think they were smarter than that. Don’t you?