Bilder on Originalism

Professor Mary Bilder of Boston College Law School has a lengthy op-ed in this morning's Boston Globe on the recent discussion of originalism as inspired by Judge Gorsuch's confirmation hearings.  This draws from her book Madison's Hand, which is a study of the drafting and re-drafting of Madison's "Notes of Debates in the Federal Convention of 1787."  A couple of excerpts are below:

The tradition of American constitutionalism, practiced by judges of all political persuasions over two centuries, has always held out an important place for history in the interpretation of the Constitution. But originalism is not constitutionalism. When the word “originalism” began appearing in legal periodicals in the 1980s, a number of influential scholars and judges, primarily on the right, quickly came to treat it as the sole legitimate method to decide constitutional cases. Originalists initially thought that the judge should interpret the text of the Constitution according only to the intent of the men who drafted and ratified it. Today, most originalists contend that a judge should abide by the text’s “original public meaning” — a term of art that originalist scholars have written thousands of pages trying to explain. ...

Madison’s notes help us see that the framers were too busy writing the Constitution that would save the country to draft the type of airtight document that originalists perceive. The first draft in early August had 23 articles. The president was elected by Congress to a single seven-year term. The Senate appointed the Supreme Court justices and made treaties. There was no vice president. There were lots of issues that they hadn’t figured out or were at odds on. They sent issues out to six small committees that came up with various parts in the final three weeks. The process was so complicated that, in late August, Madison — who became sick serving on three committees — stopped bothering to write his notes. At a moment in the convention when delegates were settling issues that we debate today, such as the Electoral College and presidential treaty powers, we have no contemporary notes from Madison. Madison worried that if “the present moment be lost it is hard to say what may be our fate.” ...

And she concludes:

Originalism requires that the Constitution be a type of document literally beyond the capacity and purpose of the framers. In his hearings, Gorsuch insisted that judges must look “backward . . . in the sense of looking at historic facts.” But when we look backward at the historic facts of the creation of the Constitution, all we see is a document written under the most trying of circumstances — to ensure a future.

Comments

[Captain Hurska Carswell, Continuance King]

Originalism is neither Liberal or Conservative, Republican nor Democrat. It is a response to the notions of a "living, breathing" document molding itself to contemporary standards. Let's look at that. Suppose some of Trump's White Nationalist supporters want to get rid of any person who does not look like them. Their notion of a contemporary standard. Suppose further, they obtain additional political currency and power. Under a "living breathing" standard, our Constitution is turned into a hate screed. Originalism protects against that.

[terry malloy]

Agree with Cpt.

'Living and breathing' is only a good thing to the extent the arc of history bends toward justice in a Lockian sense (protecting the minority against the majority or protecting the weak from the powerful).

This is not always the case. (See, e.g., muslim ban, Jim Crow, Japanese internment during WWII)

[Al Brophy]

Terry Malloy,

Would African Americans have fared better under Jim Crow with originalism? I don't know as the answer is "absolutely yes." Alexander Bickel made his name with an article arguing that Brown was not justified on (what I think we'd now call) originalism.