With the new Supreme Court nomination, originalism is likely to be back in popular commentary as it was during Justice Gorsuch’s confirmation. I hope to use this time to highlight the arguments against originalism and separate the good ones from the bad ones. In particular, I want to highlight the bad ones, in the hopes that originalist critics will give up on them, and find meaningful points of engagement.
So let’s start with this one: originalism depends on the framers all agreeing on everything. Here’s Donald J. Fraser at the History News Network: The Founders Would Not Recognize Originalism—Why Should We? (Thanks to Andrew Hyman for the pointer). Key claim:
The inability to recognize the extent to which the Founding Fathers argued among themselves is a major flaw in the conservative case for originalism since it is dependent on the theory that people in the 18th century shared a common interpretation of the Constitution. In fact, they did not, as one of the earliest debates over the meaning of the Constitution shows.
[There follows an engaging description of the Hamilton/Jefferson/Madison debate over the national bank].
Fraser’s claim is fundamentally misconceived on two counts. (Before getting to them, though, I’ll start by saying that claiming originalists don’t recognize the post-ratification disputes over constitutional meaning is either lazy or dishonest. Originalist scholarship routinely engages with these debates, and anyone who thinks otherwise either hasn’t read the relevant literature or is deliberately misstating it. To pick just a couple of examples beyond the bank debates, Hamilton and Madison famously debated executive power in the Pacificus/Helvidius letters in 1793 [Saikrishna Prakash and I wrote about that debate here, as have many others], and the Federalists and Republicans famously debated the constitutionality of the Jay Treaty in 1794-95 [I wrote about that debate here, as have many others]. The idea that originalist scholarship does not acknowledge these debates is wholly unfounded.)
The existence of these debates (which nobody disputes) does not undermine originalism for at least two core reasons.
(1) Originalism does not claim that “people in the 18th century shared a common interpretation of the Constitution” as to all matters. It claims that to the extent that people in the 18th century shared a common interpretation of the Constitution, that interpretation should be binding. Citing the bank debate (or Pacificus/Helvidius, or the Jay Treaty, or any of a number of other debates) does not show that the founding generation had no common interpretations; it only shows that there were disagreements on some important matters (a point that, again, no one disputes).
On other matters, though, the founding generation seems to have been largely in agreement. To take one I’ve studied a bit, there appears to have been a general consensus, at least among leaders who commented on the matter, that Congress had the exclusive power to initiate war. Hamilton, Madison, Washington, Jay, and a numbers of others agreed, and there’s no material post-ratification commentary to the contrary. (See Chapter 8 of The Constitution’s Text in Foreign Affairs