Originalist? The Founders Couldn’t Even Agree on What the Constitution Meant | Hugh Jackson

By Hugh Jackson

When they’re not busy accusing him of being too soft on pedophiles and too hard on white people, Republicans on the Senate Judiciary Committee holding hearings on Supreme Court nominee Ketanji Brown Jackson claim to worship a original judicial philosophy. This means that they like judges who promise, all in the manner of Antonin Scalia, to base judicial decisions on what (they prefer to think) the framers of the Constitution intended.

Aside from the merit of holding the intentions of 18th-century slavers sacred, the right’s professed respect for originalism can be situational, as evidenced, for example, by the right’s unwavering determination to lay claim to the phrase ” A well-regulated militia, being necessary to the security of a free state, does not exist, or if it exists, it does not count.

One problem with the GOP trying to guess the original intent of the framers by consulting an official Ouija board approved by the Federalist Society is that Ouija boards don’t actually work. The other problem is that even if they did, and Amy Coney Barrett or Neal Gorsuch could reach the framers of the Constitution via the spirit world, which framers would they invoke?

After all, the framers were strongly at odds with each other when drafting the Constitution. And after the Constitution was ratified, they disagreed even more about it.

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James Madison and Alexander Hamilton conspired, planned and colluded and even resorted to trickery to get the states to send delegates to what would turn into a constitutional convention in the first place. But in 1791, when the ink was barely dry on the document, former constitutional pals Hamilton and Madison had very different visions of what they had just done together.

Hamilton, the nation’s first treasury secretary, was the architect of legislation to create a national bank, which Congress passed.

But wait, that’s not possible, said Madison, representing Virginia in the House of Representatives at the time. There is nothing in the Constitution that explicitly says Congress can create a bank, so Congress cannot create one, Madison asserted while urging President George Washington to veto the bill.

Oh pish chic, said Hamilton. Article I, Section 8 authorizes Congress to do a whole host of things, including, but not limited to, raising taxes and borrowing and printing money. And after authorizing Congress to do all this, Hamilton noted, Section 8 then ends with a paragraph further empowering Congress “to make all such laws as shall be necessary and proper to give effect to the foregoing powers, and all the other powers conferred by this Constitution…”

So, ipso facto, ergo and neener neener, Hamilton continued, if Congress has the power to raise, borrow, and spend money, it has the power to create a bank. Authority does not need to be listed, as it is implicit. Stick to your precious interpretation of the enumerated powers, Hamilton warned, and you get a government without the power to govern. Uh.

As you may have noticed over the years, Republicans (at least those who think about these things, like those who wind up on the Senate Judiciary Committee) believe that interpreting the “enumerated powers” of the Constitution goes hand in hand with the philosophy of original intention that so obsessed them.

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Both concepts reflect the solemn right-wing belief that the editors said what they meant and they meant what they said, dad. (This sentence reads much better in passing if you imagine it being read by Iowa GOP Senator Chuck Grassley). The enumerated powers theory, you may recall, was central to the GOP’s legal challenge to Obamacare.

Meanwhile, in 1791, Washington sided with Hamilton — and the implied interpretation of the powers of the Constitution — and signed the bank bill over Madison’s objection.

And that squishy embrace of implied powers (but probably not his enslavement of humans) is why George Washington couldn’t win a Republican primary today.

The banknote is only one of the many founding quarrels. Many people who would become, or already were, American heroes (perhaps most famously Patrick Henry) strongly opposed the ratification of the Constitution, for many reasons, many of which were quite valid. In fact, it was their opposition that led Madison et al to vow that once the document was ratified, one of the first things the new government would do would be to amend its new Constitution by adding a statement of rights.

Appease the slavers to get the Constitution ratified – an unenlightened act even for the time – holy holy amen founders also had a bunch of horribly wrong things which would require a second foundation in the form of the Civil War Amendments and reconstruction. (Although a Democratic Supreme Court nominee probably shouldn’t talk about it, lest Ted Cruz accuse him of practicing what he claims is critical race theory.)

For decades, the American right has indiscriminately stuffed the nation’s founding thinkers into a GOP-friendly box to dump on any hot topic at any time. But the framers were just humans (white men, in particular), many of whom wore ridiculously stylish powdered wigs. They could and repeatedly be wrong, unreasonable, self-interested (Madison has written extensively about that last bit too) and jerks.

But they also had very different views and principles, some profound, some atrocious, some silly. Viewing them as a monolith captivated by a magical founding father groupthink, Republicans are doing a disservice to the very people they say they revere. And if that triggers the base and pushes it to the polls, Republicans don’t care.

Hugh Jackson is the editor of Nevada Current, a sister site to the Pennsylvania Capital-Star, where this column first appeared.

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