Originalism and Its Disregard for the Intentions of the Framers

By: Isabel Niemer

Edited By: connor tooman and clark mahoney

When ruling on constitutionality, proponents of originalism center their adjudication around what the Framers intended for their words.[1] However, they themselves likely did not want their intentions to hold weight. The originalist method of constitutional interpretation disregards the Framers’ indications prior to, during, and after the construction of the Constitution that they never intended their opinions to be binding. 

Through the assimilation of disparate ideas from disparate times into the Constitution, the Framers showcase their ability to dismember a good idea from the society in which the idea was created. Consequently, it is logical that they would expect us to do the same in our interpretation of the Constitution.  The Framer’s extensive study of history indicates that they did not expect their intentions to bind future interpretations of the Constitution. The Founders derived the central ideas about the American government from historical governments and philosophies, illustrating their avid studying of history. The Framers gained the ideas of separation of powers and natural rights from John Locke, who lived in England in the 17th century.[2] The Enlightenment ideals of liberty, equality, and justice can be seen throughout the Constitution.[3] The wars between Protestants and Catholics during the Protestant Reformation (1517-1648) led to the separation of church and state in America.[4] The idea for the executive, legislative, and judicial branches were obtained from Ancient Rome.[5] Democracy was an ideal that was pioneered by the Greeks around the fifth century B.C.E.[6] Any person who studies history to the extent the Framers likely did would see that societies evolve over time. Through this studying, they likely observed how the standards of what is accepted as “the norm” evolved throughout the years, prompting them to create a Constitution that could be molded to the ways of life thousands of years from its birth.

Additionally, a study of the actual drafting of the Constitution refutes the usage of originalism in interpreting the Constitution.[7] The Founders made it clear during the Constitutional Convention in Philadelphia that they didn’t want their intentions to hold weight when interpreting the Constitution.[8] During the convention, the windows of the building were shuttered and they were sworn to secrecy, leading one to have no reason to believe that they wanted their intentions to be known.[9] In the Constitution itself, some passages are explicit in their wording, while some are left more vague. If the Framers wanted some portions of the Constitution to be adjudicated in a specific manner, there would be nothing stopping them from spelling this out in the document itself. When the Framers gathered support for the ratification of the Constitution, one of the biggest concerns of the Anti-Federalists was that the Constitution was too vague and open to interpretation.[10] This criticism in itself demonstrates that the idea of a living constitution would not blindside the Founders. Some Anti-Federalists took it one step further, believing that they had nefarious intentions to overthrow state constitutions.[11] The Framers responded to this criticism by assuring Anti-Federalists that their intentions would have no bearing on the legally significant intent of the Constitution.[12] 

Lastly, the events after the ratification of the Constitution, such as the Supreme Court case of Marbury v. Madison (1803), support the theory that the intentions of the Framers were not expected to be followed. In this landmark case, the Supreme Court ruled that it had the power of judicial review—the power of the courts to determine the constitutionality of laws.[13] This power was not explicitly given to the Supreme Court in the Constitution, so it is unclear if all of the Framers agreed that the court should have this power. In this way, originalist judges derive the majority of their power, influence, and legacy from not following what the Founders intended. From the early days of our country, the ambiguity of the Constitution was used against the Framers, in this case directly against James Madison. However, Madison himself in years prior endorses the idea of a living constitution, saying that the document itself “was nothing more than the draft of a plan, nothing but a dead letter, until life and validity were breathed into it by the voice of the people.”[14]

While originalism claims to follow what the Founders would have wanted, indications by the Framers before, during, and after the drafting the Constitution refute this claim. You can still agree with the Founding Fathers and disagree with originalism. Moreover, you should disagree with originalism if you agree with them. People who want nothing to change in society must remember that the Founders were a group of change makers, determined to push society to its ever-changing peak. Under the confines of originalism, the role of the courts does not reflect this essential ideology of the Framers.

NOTES:

1. Paul Brest, “The Misconceived Quest for the Original Understanding,” Boston University Law Review 60, no. 2 (March 1980): 204-238.

2. “Foundations of American Government,” UShistory.org, accessed November 6, 2022,  www.ushistory.org/gov/2.asp.

3. Ibid.

4. Freddie Wilkinson, “The Protestant Reformation,” National Geographic, last modified June 2, 2022, accessed November 6, 2022, https://education.nationalgeographic.org/resource/protestant-reformation.

5. “Early Rome: The Republic and Government Structure,” Encyclopedia.com, last modified October 27, 2022, accessed November 6, 2022, https://www.encyclopedia.com/history/news-wires-white-papers-and-books/early-rome-republic-and-government-structure.

6. National Geographic Society, “Democracy (Ancient Greece),” National Geographic, last modified May 20, 2022, accessed November 6, 2022, https://education.nationalgeographic.org/resource/democracy-ancient-greece.

7. Erwin Chemerinsky, “Even the Founders Didn’t Believe in Originalism,” The Atlantic, September 6, 2022, https://www.theatlantic.com/ideas/archive/2022/09/supreme-court-originalism-constitution-framers-judicial-review/671334/.

8. Powell, H. Jefferson. “The Original Understanding of Original Intent.” Harvard Law Review 98, no. 5 (March, 1985): 885-948. https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1390&context=faculty_scholarship#:~:text=When%20interpreting%20the%20Constitution%2C%20judges,drafters%20and%20early%20inter%2D%20preters.

9. “The Constitution: How Did it Happen?” National Archives and Records Administration, accessed November 6, 2022, https://www.archives.gov/founding-docs/constitution/how-did-it-happen.

10. Powell, “Original Intent,” 885-948.

11. Ibid.

12. Ibid.

13.  “About the Supreme Court,” United States Courts, accessed November 6, 2022, https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about.

14. James Madison, “The Jay Treaty,” House of Representatives, Article 2, Section 2, Clauses 2 and 3 (April, 1796): 263-279, accessed November 6, 2022, https://press-pubs.uchicago.edu/founders/documents/a2_2_2-3s22.html.
    

BIBLIOGRAPHY:

Brest, Paul. “The Misconceived Quest for the Original Understanding.” Boston University Law Review 60, no. 2 (1980): 204-238.  

Chemerinsky, Erwin. 2022. “Even the Founders Didn’t Believe in Originalism.” The Atlantic. September 6. https://www.theatlantic.com/ideas/archive/2022/09/supreme-court-originalism-constitution-framers-judicial-review/671334/.

Encyclopedia.com. “Early Rome: The Republic and Government Structure.” Encyclopedia.com,

October 27, 2022. Accessed November 6, 2022. https://www.encyclopedia.com/history/news-wires-white-papers-and-books/early-rome-republic-and-government-structure.

Madison, James. 1796. “The Jay Treaty.” House of Representatives, Article 2, Section 2, Clauses 

2 and 3 (April): 263-279. https://press-pubs.uchicago.edu/founders/documents/a2_2_2-3s22.html.

National Archives and Records Administration. “The Constitution: How Did it Happen?” 

National Archives and Records Administration. Accessed November 6, 2022. https://www.archives.gov/founding-docs/constitution/how-did-it-happen.

National Geographic Society. 2022. “Democracy (Ancient Greece).” National Geographic, May 

20, 2022. Accessed November 6, 2022. https://education.nationalgeographic.org/resource/democracy-ancient-greece.

Powell, H. Jefferson. “The Original Understanding of Original Intent.” Harvard Law 

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United States Courts. “About the Supreme Court.” United States Courts. Accessed November 6,

2022. https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about.

UShistory.org. “Foundations of American Government.” UShistory.org. https://www.ushistory.org/gov/2.asp.

Wilkinson, Freddie. 2022. “The Protestant Reformation.” National Geographic. June 2. 

Accessed November 6, 2022. https://education.nationalgeographic.org/resource/protestant-reformation.