WERE THE FOUNDERS THEMSELVES ORIGINALISTS?

• Author: McGinnis, John O.

The founding generation was broadly originalist in constitutional interpretation. As Judge Pryor has suggested, the Founders believed the meaning of the Constitution was fixed at the time of enactment and was not subject to updating by interpretation. Any updating was to be left to the amendment process. Thus, originalism energizes the amendment process by allowing subsequent generations to be framers of the Constitution.

What is harder to assess is exactly what kind of originalists the Founders were. Ultimately, a review of the history indicates that the Founders were legal contextual textual originalists, rather than living constitutionalists. Calling the Founders "legal contextual textual originalists" seems like quite a mouthful. What it means is that, first, the Founders focused on the text rather than directly on intent. (1) And second, the Founders were contextualists, not word- or even clause-bound textualists. The Founders ascertained the meaning and often made it more precise by consulting the entire document. Third, they permitted the meaning of the text to be made more precise by understanding it as law and that meant consulting the legal and historical background of its terms. (2)

The Constitution was not created ex nihilo but rather was set against a rich background of Anglo-American history and Anglo-American interpretive methods. This background was to the advantage of the officials who had to implement the Constitution and those who lived under it because the Constitution's Anglo-American legal heritage can make meaning more exact than might otherwise be expressed solely within the four corners of a short document.

In this brief time, I will show how various elements of the founding indicate that the Founders were originalists: first, the document itself; second, debates between the Federalists and the Anti-Federalists; and third, the post-enactment practice of the founding generation.

First, a review of the document itself provides valuable insights into the nature of the originalism of the founding generation. The Constitution the Founders created is itself an essential context for its method of interpretation.

Second, the debate between the Anti-Federalists and the Federalists, those supporting the Constitution, demonstrates the Founders' embrace of legal contextual textual originalism in how the Constitution would be interpreted. The Federalists emphasized that the judges would be constrained by strict rules of interpretation so that they could not create a consolidated government. Some of the Anti-Federalists, to be sure, opposed these methods of interpretation in favor of more populist--rather than legal--methods. But that does not mean that the Anti-Federalists expected populism to guide constitutional interpretation. To the contrary, the Anti-Federalists' opposition to originalist methods often stemmed from their recognition that originalism was likely to guide constitutional interpretation--for the Anti-Federalists, a reason to reject the Constitution. (3)

Third, the founding generation put originalist interpretation of the Constitution into practice. Obviously, in a short talk, I cannot do justice to the huge variety of constitutional argument and debate in the early republic. However, the debate over the constitutionality of the Bank of the United States illustrates how all the main participants in the founding generation's political debates were originalists and even largely agreed on the methods of interpretation, even as they disagreed on the question of whether chartering a national bank was constitutional. (4) Indeed, the better and more experienced the lawyers were, the more they tended to agree on interpretive principles, if not the result. (5)

First, let us begin with the Constitution, which itself provides some clues about how it is to be interpreted. For instance, as Professors Chris Green and Evan Bernick have argued in some interesting new work, the Oath Clause (6) is an oath to "this Constitution." Some internal references in the Constitution, like "the powers granted herein" and their careful enumeration, suggest that this Constitution is listing things. (7) That is the kind of thing texts do. Moreover, Washington's transmittal letter talks of delivering the Constitution for ratification to the States. (8) And what was the Constitution? It was a text written on parchment.

Another indication of the salience of text is the great care the Framers took in perfecting it. The Committee of Detail and the Committee of Style of the Constitutional Convention made many changes to bring clarity to the Constitution. Everyone was watching the nuances, down to its punctuation. For instance, Gouverneur Morris, the most influential member of the Committee of Style, rendered Article I, Section 8, Clause 1 as providing three separate powers: (1) to lay and collect taxes, duties, and imposts; (2) to pay debts of the United States; and (3) to provide for the common defense and general welfare of the United States. Their separation was indicated by a semicolon. (9) But Roger Sherman saw that breaking up the phrases with a semicolon would give greater powers than he thought had been the sense of the Convention, and thus eliminated the last semicolon, making sure that the requirement to provide for the common defense and general welfare provided a limitation on the first two powers and not an expansion. (10) Such careful rearticulation suggests that the text was the essential matter for interpretation--they took a lot of time over it--and that the text was designed both to limit and empower the federal government. When a judge updates the Constitution through interpretation, he destroys the delicate compromise that was forged in that text.

The text itself indicates the relevance of the entire Constitution to interpreting particular clauses, as suggested by the interlocking nature of many provisions, such as the Necessary and Proper Clause, as well as the repetition of words and concepts. Thus, it provides support for contextual textualism. Examples of words that are repeated throughout the text include the words "officer" and "necessary." Intra-textualism flows directly from the way the document is written. In short, as Justice Paterson noted in the 1790s, what differentiated the United States Constitution from previous national constitutions like the British constitution that preceded it was its "written exactitude." (11)

But the relevant, perhaps most important, context of the Constitution also comes from the fact that it is a legal document. As philosophers of language...