CHICAGO – The US Supreme Court’s recent rulings on cases involving guns, abortion, climate change, tribal sovereignty, religion in schools, and individuals’ ability to sue government officials for rights violations have uncorked a torrent of commentary about the ascendance of “originalism” among the six-justice conservative majority. The text of the US Constitution, on this view, means only what its authors intended or what readers at the time it was written would have understood it to mean. “History Triumphs at Supreme Court,” declared one recent headline. “Supreme Court Again Nods to History, Tradition in Religion Case,” asserted another.
As a historian and constitutional law scholar, I am troubled by this framing. It is simply false to suggest that the Court’s conservative majority is doing anything that resembles “history.”
Originalists would have us believe that constitutional interpretation is quite simple. The late justice Antonin Scalia, one of originalism’s most influential exponents, argued that the Constitution “is not living but dead” – and “enduring.” The Constitution “means today not what current society, much less the courts, thinks it ought to mean, but what it meant when it was adopted.”
What, then, is meant by the Second Amendment’s reference to “the right of the people to keep and bear arms” or the Fourteenth Amendment’s language about “due process” and “equal protection of the laws”? Originalism insists that there is a single correct answer to such questions, and that the only alternative is to have judges simply making things up as they go. If we don’t want “current society” or “the courts” telling us what they think the Constitution ought to mean, Scalia warned, we must commit to “what it meant when it was adopted.”
The problem, of course, is that determining what the text of the Constitution meant when it was adopted is a complex undertaking. Historians have a word for this process: “research.” It involves a lot of reading and a lot of time, until the researcher has immersed herself in a context that is entirely different from her own. The people living through the drafting of the Constitution (1787), the ratification of the Bill of Rights (1791), or the Reconstruction amendments (1865, 1868, and 1870) saw things differently, and used words differently, from how their own predecessors did – and from how people do today.
History is an empirical discipline. Historians form hypotheses and test them based on the available evidence, not on theory or logic alone. To ascertain what a legal text meant at any point in time, one must examine how people talked about it at that time. In the case of the Constitution, we have ample evidence not only of how the founders talked about the text, but also of how they thought their handiwork and specific legal issues should be talked about.
Consider James Madison. Originalists and the conservative Federalist Society frequently cite a caricatured version of Madison as their ideal founding father. But the real Madison was a complex and contradictory thinker and politician who had concrete ideas about how constitutional interpretation should be undertaken.
In 1830, when Madison was 79 years old and living in retirement on his Virginia plantation, he conducted a remarkable correspondence with Secretary of State Martin Van Buren, who was advising and essentially speaking on behalf of President Andrew Jackson. These letters make clear that the father of the Constitution was no originalist.
Van Buren and Jackson had written to the elderly Madison because they wanted his advice, as the “last of the fathers” still living, on one of the most pressing policy debates of the day: federal funding for public works projects (“internal improvements”) such as roads and canals. Jackson had recently vetoed an appropriations bill that would have funded the federal government’s purchase of stock in a company that was building a road in Maysville, Kentucky. In an effort to justify his decision, Jackson laced it with references to previous presidents’ vetoes of similar legislation, including one by Madison in 1817. As the dutiful go-between, Van Buren sent the Maysville Road Veto Message to Madison.
The father of the Constitution responded to this show of respect from his successors by telling them that they had misunderstood him. Jackson’s veto message, Madison wrote, had “not rightly conceived the intention” Madison had in vetoing the 1817 bill. Madison’s intent on that earlier occasion had been to reject specific aspects of the bill that he considered to be beyond Congress’s power, including ones that Jackson now seemed willing to permit. Madison was able to explain what he had meant in 1817, demonstrating that Jackson’s plain reading of his predecessor’s words was wrong.
But even more important is what the Madison of 1830 thought should happen as a result of his correcting the record: nothing. Madison declined to instruct Jackson, and he rejected Van Buren’s offer to issue a “formal correction.” Instead, Madison explicitly stated that neither his own intention in 1817 nor “the general understanding at the time” of the earlier veto could or should control its meaning in 1830.
Only 13 years had passed, but Madison believed that the meaning of that legal text was now beyond the control of its author. “I am aware that the document must speak for itself, and that intention cannot be substituted for the established rules of interpretation,” he wrote. “Whether the language employed duly conveyed the meaning of which J.M. retains the consciousness” was “a question on which he does not presume to judge for others.”
Madison insisted that meaning was to be determined by a later community of readers, in a later context. The author disavowed the power to “judge for others” how his words would be interpreted. As We the People continue to digest the Court’s recent decisions, let us correct the soon-to-be historical record of our own moment. Instead of headlines trumpeting false victories for “history,” let us be real Madisonians. The last of the founders would tell us to abandon the fruitless, fatuous search for a singular fixed intention and urge us to take up the difficult work of interpretation.
(Alison L. LaCroix, a former member of the Presidential Commission on the Supreme Court of the United States, is Professor of Law and an associate member of the History Department at the University of Chicago and the author of the forthcoming The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalism (Yale University Press, 2023).