OpEd | History of Originalism, Part 2


Originalism became a household word with the appointment of Amy Coney Barrett to the Supreme Court in October 2020. Originalism: it sounds reliable, stable, comforting. Ms. Barrett identifies its guiding principles as ”First, the meaning of the constitutional text is fixed at the time of its ratification. Second, the historical meaning of the text has legal significance and is authoritative in most circumstances.”

This places an enormous burden on the Originalist who must know the full historical context of the 13 States in the years following the Revolution and know the precise word usage for each of the terms of the Constitution. In these paragraphs I offer a primer of the chaotic 1780s and the visions of the constitution’s drafters

To reestablish the moment in question: the nation, newly independent just before Christmas 1783, was on the verge of implosion and dismemberment. Our revolt and elected kingless government made us a pariah among European nations. They harassed our western settlements, embargoed our exports and overcharged for imports, compounding the economic depression that was bankrupting farmers and merchants. The national Congress had not the authority nor the machinery to resolve these foreign and domestic calamities. To save themselves and their infant nation, state leaders realized the need to recreate their national government. To do this, they assembled in Philadelphia in May 1787.

Twelve states (not Rhode Island) sent their delegates to modify and strengthen the Articles and the national government: add an executive and judiciary, enable the nation to raise revenue and field a military.

Virginia’s James Madison, however, presented a plan for a radically new national structure: a two-house legislature with the lower house popularly elected and the upper house chosen by the lower. Both houses together would select the president and a Council of Revision (i.e. Supreme Court). Delegates from smaller states feared their voices would be overwhelmed by the more populous states. They rallied behind New Jersey’s William Patterson who offered a plan to modify the Articles (as directed): adding an executive and judiciary to the same one vote per state Congress. With smaller states in the minority (New Hampshire’s were on their way) Madison’s tactical initiative succeeded and his plan became the working basis for a new government. Violating their directives, they continued their meeting in secret.

The debate(s) that ensued lasted until July. At the center of their disagreements were two issues: economic well-being of the divergent states and the role that the population would play in the legislature. All state delegations accepted the need for a single national currency, a national postal service, a national trade policy, a national military, and a national judiciary. All of which were essential for a viable, growing national economy. Each delegation did attempt to maneuver the tax system to minimize their state’s obligation. Less populous states were adamant that at least the upper house (“Senate”) have equal representation per state which was conceded to them almost immediately. Delegates from Southern states, however, had further specific interests that they insisted upon: no tariff on exports, which were the principal source of planter incomes; no infringements on their “peculiar institution” of slavery, which they believed to be essential to their wealth and way of life; and “big state” management of future tax and revenue allocation policies, which they feared could be used to transfer their wealth to wasteful spending smaller states.

Their debates carried on until July 16, when a “Great Compromise” first outlined by Roger Sherman of Connecticut, was adjusted into a form that all delegates accepted: the upper house would have two representatives per state, the lower house would have at least one representative per state with additional representative for every 40,000 residents, slaves would be counted as 3/5ths of a person when determining representation in the lower house and state tax obligations, and revenue/tax bills must originate in the lower house. With these parochial interests resolved, the rest of the document’s terms quickly followed: no tax on exports, no limits on the import of slaves for 20 years, no specific mention of a judicial review power, voting rights were left to each state.

The subsequent debate over ratification produced invaluable insights into the historical meaning of the Constitution. In the Federalist Papers the founders offered extensive delineations of the new government. These Papers give the Federalist Society its inspiration. To understand the nature and potential impact, we must understand these writings of the Federalists of 1788 and use them to evaluate those who call themselves Federalists today.

I apologize for the causal organization, but I am an historian. We must know the whys to understand the whats. Part 3 will conclude this analysis of originalism.

William Feipel was a professor of economic history at Illinois Central College; after retirement, he taught briefly at Bradley University.

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