Bench Memos

Re: Joseph Ellis’s Misconceived Attack on Originalism

Like Ed, I am spellbound at the sight of the battalions of straw men marching straight into Joseph Ellis’s silly broadside against originalism.  Ellis claims that “the constitutional doctrine of original intent has always struck most historians of the founding era as rather bizarre.”  I’ll leave aside, for the moment, Ed’s valuable reminder that original meaning (not “intent”) is what we should call the dominant approach of originalists today.  If this claim of Ellis’s were true, it would strike me only as good reason to keep historians out of the business of constitutional interpretation.  But is it true?  Has there been a meeting of “most historians of the founding era” that has issued a manifesto against originalism that I somehow missed?  Is there a Supreme Court case in which “most historians of the founding era” have signed an amicus brief attesting to the uselessness of their historical researches?

Let’s take Ellis as speaking only for himself, then–since “most historians” might be embarrassed to have him speak for them.  He regards originalism as a “bizarre” approach for the following reasons:

First, the members of the founding generation disagreed with one another about lots of interpretive questions, and even changed their own minds at various times.  (I think Ellis exaggerates Madison’s changeableness, but I’ll let that go.)  Here is something they all indisputably agreed on, however: that the Constitution actually has a meaning (just as any legal text does), that that meaning is fixed, and that the resolution of ambiguities in the text is to be achieved by reference to an original meaning that is accessible to interpretive reasoning and employs evidence both intrinsic and (if need be) extrinsic to the text.  In other words, the existence of multiple disagreements over what the Constitution means, as well as over who has authority to interpret it in whole or in part, does not obliterate the equally compelling historical fact that all the founders were . . . originalists.  Were they morons, or did they know something Joseph Ellis fails to grasp?

Second, originalism is “bizarre” in Ellis’s view because it posits some godlike wisdom on the part of the framers of the Constitution.  I will grant that they were probably wiser than I, and perhaps even wiser than Joseph Ellis, but the argument that the Philadelphia Convention was a “uniquely omniscient occasion when 55 mere mortals were permitted a glimpse of the eternal verities and then embalmed their insights in the document” is made by exactly no one.  The fact that we have seen fit to amend the framers’ handiwork 27 times suggests that the American people have never viewed the Constitution as so perfect it cannot be meddled with.  It is true that we have done little to alter the essential structural relations of the institutions created by the original document, but that is because we have made them work so well that most Americans are rightly suspicious of schemes for wholesale revision of the old original document. 

Do most Americans admire the founders?  Do we like them in noble marble, on pedestals, in heroic poses?  You bet we do, and there’s nothing wrong with treating men like heroes–when they have in fact done something heroic.  But there’s nothing in such admiration that mistakes them for “omniscient” beings who were vouchsafed some divine insight denied to the rest of us.  Men they were, fallen like the rest of us.  But what they achieved together was, we can safely say two centuries later, self-evidently stupendous.

It also bears pointing out that Joseph Ellis has sold a lot of books thanks to the American reading public’s deep admiration of the founders.  It strikes me as bad form indeed for a man to profit from that admiration and then sneer at it in the pages of the Washington Post.  Perhaps he is trying to win back some campus cred with his fellow historians who like to pretend that “great men” make less of a difference in history than they do.  It must make him feel guilty sometimes that he doesn’t go with the flow and write books no one reads about people no one has heard of.

Ellis’s third and last argument, which he plainly thinks is just awfully clever, is to quote Jefferson apparently rejecting the tenets of originalism, in an 1816 letter to Samuel Kercheval.  But Ellis takes the lines he quotes out of context.  The letter is about the reform of the Virginia state constitution, and while the passage from which Ellis lifts his quotation ruminates more generally about the need for periodic change in constitutional forms, Jefferson is not talking at all about interpretation.  He is taking the view that each generation should not shy away from making necessary formal changes in the text of a constitution–lest they become trapped by the strictures of a document that no longer suits their situation.  But unless he believed that people are really governed by a constitution’s original meaning, he would never think to make this argument.  In other words, Jefferson was recommending an openness to constitutional change because he was an originalist.  Why Professor Ellis–who is generally thought to know a thing or two about Jefferson–cannot see this is beyond my comprehension.