Understanding Originalism

Apr 5, 2016by Brion McClanahan

The Constitution

I recently received a one star “review” at Amazon for my newest release, 9 Presidents Who Screwed Up America and Four Who Tried to Save Her.  While I don’t normally respond to critical reviews, I thought this one offered an opportunity to expose some of the myths surrounding the founding generation and the Constitution that the reviewer has undoubtedly absorbed from the modern historical profession.  Quotes following the “myths” are from his review.

Myth 1: “The Founders…did not agree on what the Constitution meant (so much for a unified interpretive theory).”

False.

There was a consensus during the ratification process as to what the document would mean when adopted.  The theme started with James Wilson’s “State House Yard” speech in October 1787 and carried through virtually all of the public speeches and pamphlets on the Constitution, namely that the new central authority would be a general government for general purposes only with clearly defined and limited powers over commerce and defense (contained in Article I, Section 8) and that State powers would be virtually unlimited.  The proponents of the document spilled considerable ink defending it from prescient attacks.  This defense is what is often labeled “originalism,” what James Madison said gave the Constitution its life and vitality.  The Constitution was only reluctantly ratified because the “friends” of the document insisted the powers of the central authority would not and could not be abused.  The Bill of Rights, adopted in 1791, were added to the document to ensure that the general government remained faithful to this original interpretation.  They were “restrictive clauses” added to “prevent misconstruction or abuse of its powers.”  What is “misconstruction?”  Simple.  It is the failure of the general government—Congress, President, federal courts—to abide by the meaning of the document at the time it was ratified.  It matters not that several members of the founding generation reneged on their promise not to abuse power once they assumed office in 1789; it only matters that their actions were inconsistent with how they guaranteed the powers of the new government would be implemented and interpreted.  That is a “unified interpretive theory.”

Myth 2: “…none of them [founding generation] expected the Constitution to be a static document (so expectations that adding to or taking away from executive power over time were built into the design).

False.

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