Bench Memos

Law & the Courts

Re: Justice Stevens, Embalmed?

In my initial post on Justice Stevens’s and historian Joseph J. Ellis’s cartoonish misunderstanding of originalism, I didn’t quote or summarize the extensive passage from Jefferson (pp. 25-26 of Stevens’s speech) that Ellis was mischaracterizing. Reader George Avery rightly points out that Ellis’s misuse of Jefferson would have been even more demonstrably appalling if I had emphasized that Jefferson was discussing the need to make sure that a constitution is amendable by the people, not the judicial role in interpreting a constitution.

Anyone who reads the Jefferson excerpt in the Stevens speech ought to suspect as much, but given that the point evidently evaded Stevens and Ellis, I will quote below a fuller passage from Jefferson’s 1816 letter to Samuel Kercheval. The excerpt that Stevens quoted consists only of the portion of the paragraph that appears before the first italicized passage. (By “our constitution,” Jefferson is referring to the Virginia constitution.) Here’s the passage:

Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country…. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.… Let us [not] weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs. Let us, as our sister States have done, avail ourselves of our reason and experience, to correct the crude essays of our first and unexperienced, although wise, virtuous, and well-meaning councils. And lastly, let us provide in our constitution for its revision at stated periods. What these periods should be, nature herself indicates. By the European tables of mortality, of the adults living at any one moment of time, a majority will be dead in about nineteen years. At the end of that period, then, a new majority is come into place; or, in other words, a new generation. Each generation is as independent as the one preceding, as that was of all which had gone before. It has then, like them, a right to choose for itself the form of government it believes most promotive of its own happiness; consequently, to accommodate to the circumstances in which it finds itself, that received from its predecessors; and it is for the peace and good of mankind, that a solemn opportunity of doing this every nineteen or twenty years, should be provided by the constitution; so that it may be handed on, with periodical repairs, from generation to generation, to the end of time, if anything human can so long endure.

Contrary to Ellis’s Jefferson, relied upon by Stevens, the real Jefferson was an originalist, believing that we are bound by the original meaning of any constitution we inherit. This is why he advocated frequent revisiting of the question whether any particular constitution suited the needs of the present generation, for only the people could change it to suit themselves better. For judges to do what Jefferson counseled the people to do would have been, in his eyes, the rankest form of usurpation, and contrary to the whole purpose of a constitution. But this judicial usurpation is what Stevens, misled by Ellis, would have us believe Jefferson favored.

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