OpEd | History of Originalism, Part 3: Beware their words


The “original” words of the Constitution and the structure of the national government that it created were compromised into final form by September 1787. The delegates contented themselves with a system that was democratic, but certainly not a democracy. In the Founding Fathers own words, they had intentionally established a national political system that would “provide the necessary check on the imprudence of democracy.” With voting restricted to only property-owning taxpayers, effective participation in government was safely rested in the hands of 10% of America’s white males, thought to be “responsible.”

The famous checks and balances the delegates created would, as James Madison put it, serve “as a check on the democracy” and to expressly limit those who “labor under the hardships of life, and secretly sigh for a more equal distribution of its blessings.” There would be no “abolition of debts” or “equal distribution of property” as demanded by farmers and laborers from western Virginia to Rhode Island. Madison was convinced that the vast size and disparate interests of the states would prevent a radical faction from imposing its will on the nation as a whole. The elites of the States could rest easy that their positions were secure.

Most notably secure were the plantation owners of the South. Their voice in national politics had been multiplied by the inclusion of their slave populations. They had technically conceded to also count their slaves at the same 3/5 rate in determining state population to be used for revenue contributions to the national government. But they also knew that the Ordinance of 1785 would provide sizable returns and, along with tariff revenues on imported goods, would meet the funding needs of the national government for decades (to 1890s).

They had effectively guaranteed that their cash was safely theirs and so was their institution of slavery. The “more perfect union” did not include the South’s unfree, slave labor force in “We the people.” Their only concession was a 20-year ban on the import of additional slaves that would last until 1808.

General opinion among slave owners was that the profits from their slave dependent economy were dwindling and so was the birth rate among slaves already held on plantations. They believed that 20 years would give planters adequate time to restructure their “assets.” (As an aside, Eli Whitney’s invention of the cotton gin in 1793 made short stem cotton profitable and “King Cotton” spread the “peculiar institution” of slavery across the South.)

The Constitution’s concessions to the Southern states left them comfortably in control of the nation. They held a permanent majority in the Senate, elected most presidents who in turn appointed most Justices of the Supreme Court. Their predominant influence allowed them to blockade any and all reforms until the groundswell of demands brought their opponents together into the Republican Party of Abraham Lincoln.

Madison in Federalist #10 asserted that his “more perfect union” would prevent the power of faction, which he considered to be the greatest danger to democracy. Yet by the time he left the presidency, he and his fellow southern planters had created our nation’s most powerful faction. It ruled the nation as a minority, took us into civil war, and enabled a restructured post civil war leadership to reassert its dominance over the South and its Black population.

Today, the United States and the world have changed. Facetiously, we could remark that “originalism” would not only strip Amy Coney Barrett of her voting rights but also her property rights and judicial position. And slavery? Madison was wrong about factions from the outset. He was only afraid that democracy could somehow diminish his own faction.

“Originalism” is just another in a long line of words proffered by those who, at best, do not wish to share their bounty with those less fortunate and at worst would seek to continue to limit the rights to life, liberty, happiness and property of others. Only a Ouija board could tell us how Madison and his team would view abortion or LGBT rights. They did create a stronger “more perfect union” but one with significant flaws that mandate periodic modifications. I urge you to take some time and effort. Do not let Originalists or Libertarians or States-Rights advocates talk over your heads. Watch for their words.

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


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