CHANNELING YOUR INNER MADISON AND HAMILTON

CHANNELING YOUR INNER MADISON AND HAMILTON

By Joel Levin

What are we to make of the words of the Constitution in understanding the issues that matter today? Did the Founders have views of abortion, automatic weapons, gerrymandering, or Obamacare worth considering or, more dramatically, views that should bind us? 

We do encounter certain difficulties in their actual proceedings, which were never recorded or even remembered by almost any of the delegates, and even fewer of those in the state legislatures who ratified the document. We do not know, for example, how much horse-trading went on where there was no consensus, only two (unpaid) sides with differing opinions needing to go home and get on with their livings and their lives. For that matter, do groups even have intentions in the same way individuals do, or does thinking that they do amount to what philosophers call a category mistake? For example, why so great a deference ought to be given to agrarian landowners with limited education and parochial outlooks, who often owned slaves, and always excluded Native Americans, blacks, women, and often the poor from full citizenship – how does original intent work? 

Let me examine several concerns briefly, with deference to the legal philosopher Ronald Dworkin. 

Suppose you have a spoken rule in your family that all members of your family are equal: grandparents, parents, and children. They may have different roles and varying authority, but that does not change the fundamental equal status they enjoy. Suppose that at the dinner table one night or in the car the next morning, you as a parent sit where you always sit, at the head of the table or in the front passenger seat of the car. You have always done it that way. That evening or the next morning, your six-year-old says that he or she wants that seat, and you should sit on the side or in the back, for, after all, if everyone is equal, they have as much of a claim to the (supposedly) better seat as do you. You have never considered that claim or the logic behind it, and did not have it in mind (intend it) when you proclaimed the principle of equality. What should you do: follow what you meant (near but not complete equality) or what you said (full equality though unintended)? Suppose you had training in sociology, learning of increasing legal equality in our society in the past decades or, as a historian, observing the same thing over centuries, some of it using recycled catchwords, rules and slogans. Or perhaps you were trained as a Talmudic scholar, observing that rabbis from Akiva to Moses Maimonides to Mordecai Kaplan encounter the same concept and yet extract very different meanings, meanings often informed by what their society has learned (about families, outsiders, history, even faith) over time. Or suppose, as, with many of the Founders, you had some training in the law, and realize that what is meant by certain terms changes as society changes, as with ‘contract’, which once meant only an agreement in writing under seal, to an agreement in writing (with or without a seal), to an agreement (written or oral). If that was how you saw ‘equal’ in your family, you might well congratulate your child on being a potential Talmudic or legal prodigy and give them a more exalted seat. If the Constitution is like that – and it does not come with an instruction manual, so it could well be – originalist intent may merge into living intent. Where the Founders barred ‘cruelty’ in the Eighth Amendment, but allowed whipping prisoners and executing children, we now prohibit those acts because we allow the concept to fit the society without thinking we are doing violence to the Constitution. We simply think this is the right way to understand the concept. Did our Founders, many trained in law though they were, think that the law had become frozen, as, a century later, Charles Dickens famously suggested in his works, particularly Bleak House, where he described the courthouse being where the “raw afternoon is rawest, and the dense fog is densest, and the muddy streets are muddiest near the leaden-headed old obstruction”. That was not the case, however, for the Founders. They had been trained as colonists in English law. The highest British Court, King’s Bench, had been overseen for decades by Lord Mansfield, a Scottish reformer who fundamentally overthrew (without ever saying so) many of the rules of contract, tort, finance, insurance, religious toleration, and slavery. For example, Mansfield reconsidered the concept of ‘person’, which was previously limited, and found for the first time it included Catholics and slaves. The reality of judicial revisiting was evident to the Founders.

One objection here might be that there was a certain ideology, either as a way of looking at the text (the written words) or as an underlying set of beliefs. That ideology is not quite frozen, but it is hardly living. Is that a reasonable way of seeing things? Suppose that ideology is conservative – as conservatives are the greatest fans of original intent. What does it then mean to be a textual conservative? Does it mean one must be a literalist? Does “Congress shall make no law . . . abridging the freedom of speech” mean it can’t restrict slander, hate speech, spilling military secrets, or billboards over a grade school advertising tobacco?
No serious conservative would want that kind of literalism, as that is far from the way we look at rules in general. We read into rules notions of reasonableness, foreseeability, rationality, and consideration of other values (the speed limit rule giving way to your pregnant wife’s imminent delivery). The requirement for a warrant under the Fourth Amendment should hardly be used to restrict police in hot pursuit or encountering an emergency involving life and death that cannot await a court
process.

This, then, leaves a set of cohesive beliefs such as, perhaps, the modern conservatism of Milton Friedman, Antonin Scalia and William Buckley (or some blend of them). Of course, there is no evidence in the Constitution for such a unity of beliefs, and it is well-known that Hamilton and Jefferson differed greatly from the outset. But perhaps the conservatism here comes from a unifying reading of the document.
 
Alas, that possibility clearly fails. Aside from the inescapable and pernicious fact that any unifying reading must include an approval, even an endorsement, of slavery, does it hold together? The First and Fourth Amendments are radical pronouncements against the capacity and legitimacy of the reach of government in the areas of religion, speech, press, assembly and search and seizure. The reach and powers of Congress in Article I, Section 8 are, on the other hand, vast and almost endless. The Constitutional silences are worse yet. What happens when state and federal laws conflict? What power does the Supreme Court really possess? Consider President Andrew Jackson, following a ruling of Chief Justice John Marshal in Worcester v. Ga., trumpeting “John Marshall has made his decision, now let him enforce it.” Ideology seems no refuge for finding a justification to stay focused only on the Founder’s intent.
Where are we then? Simply, when someone tells you: “I follow original intent, what the Founders believed, the only legitimate way to view matters”, it is fair to ask them if they endorse an economic or political theory that allows the separation of the races if they would keep slaves or execute a 14-year-old (George Stinney Jr. was executed at age 14 in South Carolina in 1944). Ask what Madison would think of internet bullying and the First Amendment. Perhaps accepting a theory of linguistic realism, ideological irrelevance, Founders’ fallibility, and reality about what intent means and what are its explanatory limitations would prove a better path.

Joel Levin