1 December 2021
Former Chief Justice Scalia was a great fan of Originalism, the philosophy that the U. S. Constitution was perfect as written, fixed for all time, with no need for changes, no matter what. He explained it this way in a 2008 speech given at the University of Fribourg: “When a case comes to me, I don’t do whatever I feel like doing. I have a standard. That standard is what would the people at the time the Constitution was enacted have said.”
It interests me that Justice Scalia could be so positive he knew the minds of those enacting the Constitution. There is no clear record of what participants thought, since minutes of most meetings weren’t kept, and most of what we know about thoughts and deliberations comes from individual letters passed between the various “founders.” What has been determined is that there was no consensus about anything. Some colonies didn’t want any constitution – didn’t want any federal government. Some wanted a very weak federal presence, maybe just enough to deal with foreign affairs, letting the individual “states” handle everything domestic as they saw fit, locally. Others wanted a strong national framework, fearing the individual states couldn’t hold the new, very fragile democracy together. It takes no great leap of imagination to be pretty positive that not everyone considered the signed Constitution the be-all and end-all.
We know from his own words that Benjamin Franklin, one of the best known and most respected of the “founding fathers,” had some issues with the Constitution. In his speech before the 1787 Constitutional Convention[1], he was clear: “I confess that I do not entirely approve of this Constitution at present.” He implied that there were a number of other objectors: “If every one of us in returning to our Constituents were to report the Objections he has had to it…”"…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?” He alluded to all the different philosophies and local interests that had to be considered, noting
Even with his criticisms, he urged acceptance of the Constitution as written. Why? First, “I doubt too whether any other Convention we can obtain, may be able to make a better Constitution.” Second, it was a pretty good document: “It therefore astonishes me, Sir, to find this System approaching so near to Perfection as it does.” Third, the country badly needed a constitution: “I agree to this Constitution, with all its Faults, if they are such; because I think a General Government necessary for us… and I think [having an approved Constitution] will astonish our Enemies, who are waiting with Confidence to hear that our Councils are confounded, like those of the Builders of Babel, and that our States are on the Point of Separation.”
***
There is no record of Franklin’s specific concerns, although he readily identified them for the conventioneers: “The Opinions I have had of its Errors, I sacrifice to the Public Good. I have never whispered a Syllable of them abroad. Within these Walls they were born, and here they shall die.” He hoped, for the good of the new nation, that others would act similarly: “On the whole, Sir, I cannot help expressing a Wish, that every Member of the Convention, who may still have Objections to it, would with me on this Occasion doubt a little of his own Infallibility, and to make manifest our Unanimity, put his Name to this instrument.”
If an attempt was made to use these statements as a justification for Originalism – that the Constitution might not be perfect, but it was good enough – the rest of Franklin’s speech would have to be ignored: “I believe farther that this is likely to be well administered for a Course of Years…I hope therefore that for our own Sakes, as a Part of the People, and for the sake of our Posterity, we shall act heartily and unanimously in recommending this Constitution, wherever our Influence may extend, and turn our future Thoughts and Endeavours to the Means of having it well administered.” (and)
Having the Constitution “well administered,” and able to be improved if deemed desirable at any point, was the reason that one entire article of seven was devoted to amending it. Article V reads:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
Clearly, amending the Constitution was not meant to be easy, but it was meant to be possible.
***
Regardless of what kind of amendments our original leaders might have had in mind, a second reason to jettison Originalism should be obvious: how could a few men, in the aftermath of a world-changing war - in what would eventually be just the East Coast fringe of the United States[2], populated by less than four million people[3] - create a document that would serve all the needs of a great nation for the rest of its existence? They couldn’t. Thomas Jefferson – no champion of strong “united” states, and often cited as a hero of the originalists/conservatives – said it clearly in an 1816 letter to Samuel Kercheval:
“Some men look at constitutions with sanctimonious reverence, and deem them, like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I know that age well; I belonged to it, and labored with it. It deserved well of its country… But I know also that laws and institutions must go hand in hand with the progress of the human mind… 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.”
==================
[1] Apparently, Ben Franklin’s speech at the 1787 Constitutional Convention was not written down by him (or, at least, not saved). It was reconstructed from notes made at the time by James Madison.
[2] Even with lands ceded by the Treaty of Paris following the end of the Revolutionary War, the new United States included only 890,000 square miles of land, less than the combined area of Alaska and California. Today, the United States covers 3.8 million square miles.
[3] The United States are now home to 329 million people.
MORE ESSAYS
To the Writing It Down Homepage
Leave a comment: symbios@condortales.com