Originalism has reached great heights since it first came about in the 1970s as an obscure legal theory. Most current Supreme Court justices use originalism in their legal reasoning. Adherents believe that the Constitution has a fixed meaning and that it should be interpreted as it would’ve been back in the 1700s. Critics have made many compelling arguments against originalism, noting that it lends itself to a selective reading of history and that determining the Founders’ intent is nearly impossible.
But even where original intent can be known, the Framers likely did not want their views to control constitutional interpretation. Nothing indicates that the original meaning of the Constitution was to create judicial review or, if it was, that it was meant to create originalist judicial review. In fact, the evidence, including the Ninth Amendment, points to the contrary.
Following the original meaning of the Constitution therefore requires abandoning originalism as a method of constitutional interpretation. This, in short, is what I call the incoherence problem.
Originalism is primarily about how courts should interpret the Constitution. That leads to an obvious threshold question: How did the Framers intend the courts to do this? Put another way, what was the original meaning of Article III—the section of the Constitution that creates the federal judiciary—in terms of how judicial review should be performed? This important constitutional question should be analyzed under the same approach as is used for all constitutional interpretation.
The answer raises significant problems for originalism. Nothing in Article III explicitly authorizes courts to review the constitutionality of laws and executive actions. Article III, Section 2, defines the types of “cases” and “controversies” the federal courts may hear, but it says nothing whatsoever about a power to declare laws or executive acts unconstitutional. Nor is this power inherent in the authority granted to courts by Article III. Even if federal courts could not declare laws unconstitutional, they still could exercise their constitutional authority to decide the cases and controversies that come before them. Federal courts could apply federal law, decide diversity cases, and resolve all of the other matters enumerated in Article III, Section 2 without being allowed to invalidate a statute or executive action on constitutional grounds. No such power existed in English courts. One would think that if the Framers meant for the Constitution to deviate from English law and practice in such a fundamental way, they would have been explicit about it.
[David H. Gans: This Court has revealed conservative originalism to be a hollow shell]
Nor do the records of the Constitutional Convention reveal an agreed-upon desire to give the Supreme Court the power to strike down laws or executive actions. The crucial point is that judicial review cannot be justified by either the text of the Constitution or the Framers’ intent as expressed at the Constitutional Convention. Alexander Hamilton argued for this power in “Federalist No. 78,” so perhaps it was assumed that judicial review would exist. Some state courts did exercise that power. But this is a flimsy basis for such a consequential authority, which has been central to American constitutional law and government since its creation by Marbury v. Madison in 1803. With no authority for it in the text of the Constitution, and no desire for it recorded at the Constitutional Convention, how can we conclude that the original intent of Article III was to allow the Supreme Court to decide the constitutionality of laws and executive actions?
A commitment to originalism, one might argue, requires abandoning judicial review altogether. It is incoherent to seek the original meaning for how the courts should exercise a power when the idea that the original meaning of the Constitution was ever to give them that power remains unsupported.
Another, more subtle problem with the originalists’ embrace of judicial review becomes clear after considering one of the main justifications for the theory. Robert Bork, the late judge known as the “father of originalism,” premised it as an answer to the problem of an unelected judiciary in a democratic system. But Bork’s answer is no solution: Originalist judicial review is just as incompatible with majority rule as is non-originalism. Under both approaches, unelected judges rule on the constitutionality of actions by popularly elected officials. Originalists like Bork answer that originalist judicial review is democratic because the people consented to adopt the Constitution, and originalism simply follows what was agreed to by ratification. To begin with, it is factually wrong to say that “the people” consented to the Constitution, because less than 5 percent of the population at the time participated in ratification. No women and no people of color participated, and only a small fraction of white men did. Moreover, not a single person alive today—not even a living person’s grandfather—voted to ratify the Constitution. If originalists consider it undemocratic that our laws are subject to the approval of unelected judges—who at least die or retire someday and whose replacements are appointed by elected officials—how much more undemocratic is it if society is governed by past majorities who cannot be overruled and are never replaced? Nor can the failure to amend the Constitution be seen as evidence of majority consent, because amendment requires approval by a supermajority: two-thirds of both houses of Congress and three-fourths of the states.
I very much disagree with the originalist premise that American democracy should be defined as majority rule or that this concept of democracy must be reconciled with judicial review. But originalists like Bork, who start with this definition, must confront the problem that all judicial review, whether originalist or non-originalist, is counter-majoritarian.
Assuming that originalists can surmount this problem and somehow make a convincing case that judicial review is justified under the original meaning of the Constitution, they run right into another problem. Even aside from judicial review, the Constitution must still be interpreted by presidents, members of Congress, state legislators, and government officials at all levels. Originalism requires that all of these people ask: What was the original understanding of how the Constitution should be interpreted?
[Harry Litman: Originalism, divided]
In his 1985 article “The Original Understanding of Original Intent,” the law professor H. Jefferson Powell laid out strong evidence that the Framers of the Constitution never meant their own intent to be controlling. At the Philadelphia Convention, the Framers explicitly indicated that they did not want their specific intentions to control the Constitution’s interpretation. Years later, James Madison maintained that the Philadelphia proceedings “can have no authoritative character” and that the document coming out of it “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, speaking through [the state] Conventions” that ratified the Constitution in 1787–90. The delegates also took steps to shield convention records from public view. They met under a rule of secrecy and preserved the records’ confidentiality when they adjourned by depositing the documents with George Washington. The records remained in “confidential limbo” until 1818, when John Quincy Adams organized and published them.
Those looking for evidence of original meaning in the Philadelphia debates often use Madison’s notes. These are apparently the most comprehensive of several unofficial reports, yet they covered no more than 10 percent of the proceedings. Madison himself treated his notes as private property because he thought that the proceedings “could never be regarded as the oracular guide in expounding the Constitution.” The late Yale professor Boris Bittker argued that originalists have failed to explain why the Framers’ intent should be reconstructed from a private document that Madison intentionally withheld.
If the Framers anticipated that intent would matter in future interpretations, they thought the views of the state ratifying conventions should be considered. As Powell writes: “Only later, during the breakdown of the Republican consensus, did the attention of constitutional interpreters gradually shift from the ‘intention’ of the sovereign states to the personal intentions of individual historical actors.”
This poses an impossible task in determining original meaning. So many people, with countless different views, were involved in the state ratifying conventions that to say there was an original understanding is pure fiction. Moreover, the conventions met separately from 1787 to 1790, and though they were open to the public, there were no official reporters. The unofficial reports of the debates, Bittker noted, “are partisan, inaccurate, garbled, and fragmentary.” In 1833, rejecting the possibility of ascertaining a common intent of the Framers from what little is known of the ratification debates, Justice Joseph Story wrote:
Opposite interpretations, and different explanations of different provisions, may well be presumed to have been presented in different bodies, to remove local objections, or to win local favor. And there can be no certainty, either that the different state conventions in ratifying the constitution, gave the same uniform interpretation to its language, or that, even in a single state convention, the same reasoning prevailed with a majority, much less with the whole of the supporters of it.
Bittker commented: “If it were true that the ratifiers wanted their intent to control the courts in deciding constitutional issues, they can be justly accused of gross negligence for failing to take even rudimentary steps to preserve their precious thoughts.”
Beyond the text of the Constitution, scant surviving documents record the Framers’ intent during the drafting and ratification of the Bill of Rights. The principal version of the House debates was written by an author whom Madison described as “a votary of the bottle,” whose reports “abound in errors; some of them very gross.” No one recorded the debates in the Senate or the state legislatures. Debates leading up to the later amendments are better documented, but there is still much disagreement about the intent of the Fourteenth Amendment.
[Adrian Vermeule: Beyond originalism]
Strong evidence supports the conclusion that those who wrote the Constitution preferred that their views not be controlling. Many scholars have argued persuasively that in choosing to write the Constitution in general language, the Framers desired that it evolve via interpretation and, as Justice Felix Frankfurter put it, “gather meaning from experience.” Judge Gerard E. Lynch observed that “the framers of particular constitutional provisions consciously intended to leave particular questions of interpretation open for future development by the courts.” This is why Chief Justice John Marshall famously declared that “we must never forget that it is a constitution we are expounding,” a constitution “intended to endure for ages to come.”
The Framers believed that individuals possess natural rights and that the purpose of government, as John Locke wrote, was to protect these rights. The Framers did not think it necessary to enumerate these natural rights in the Constitution. Robert N. Clinton, a retired law professor, explains that “the articulation of concepts of natural law rested principally with the judges. As seen through [the Framers’] eyes, the judges of the day were ‘discovering’ the natural law.” The Framers’ view of interpretation was so radically different from that of today as to make it impossible to say that they ever intended the Constitution to be interpreted based on their original understandings.
Originalists might answer that I have ignored how originalism has changed over time. The legal philosophy initially focused on the Framers’ intent, and their rejection of originalism would be relevant under that approach. Now, however, most originalists focus on determining the original meaning of a constitutional provision rather than the specific intent of the Framers. Therefore, they would say, my argument about the drafters’ theory of interpretation is misguided and irrelevant.
Still, this does not solve the originalists’ incoherence problem. Originalism would be justified under its own terms only if there was a basis for concluding that the original understanding of Article III was for judicial review to follow the original meaning of the Constitution. No support exists for such an assertion.
And even when the focus is on discovering original meaning rather than intent, the Framers’ intent is still relevant. There are no words in the text to interpret concerning the power of constitutional judicial review, so original meaning cannot be ascertained based on the Constitution’s language or dictionaries defining it. Contemporaneous practices were mixed; some states had judicial review in their state courts, and others did not. Nor do contemporaneous understandings support the idea that the original meaning of the Constitution was to be controlling in interpreting the document. People were uncertain not only about what the Constitution meant but about what it actually was. “Our constitution,” Representative James Jackson of Georgia said in a speech to the First Congress, “is like a vessel just launched, and lying at the wharf, she is untried, you can hardly discover any one of her properties.”
During their early debates, many members of Congress assumed that the Constitution was unfinished and that it was their job to help complete it. They embraced Madison’s remarks from “Federalist No. 37”: “All new laws, though penned with the greatest technical skill … are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.”
In that essay, Madison reminded his readers that the medium through which human beings communicate is necessarily “cloudy.” “No language is so copious as to supply words and phrases for every complex idea.” Regardless of how comprehensive the ideas were, “the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered.” This inaccuracy would be amplified “according to the complexity and novelty of the objects defined.”
The original meaning of the Constitution, if it included judicial review at all, did not embrace originalism as the method for interpreting the document. Originalism then self-destructs; to follow originalism requires abandoning it.
This article has been excerpted from Erwin Chemerinsky’s new book, Worse Than Nothing: The Dangerous Fallacy of Originalism.