Originalism is not required for constitutional interpretation


Drew Finley

With the recent death of Associate Supreme Court Justice Antonin Scalia, the jurisprudence of originalism has received increased scrutiny. In many cases, a renewed aura of adulation has settled over the philosophy as a whole.

Pundits have praised Scalia for what they call his “fearlessness,” but more importantly his “peerlessness” for rigidly and admirably adhering to exactly what the Constitution means — when no one else would.

In its simplest form, originalism asserts that the words of the Constitution retain the meaning they possessed when they were written, the meaning that the Founders intended them to have. At face value, a theory like this one might seem like the best way to go about interpreting the Constitution.

Indeed, what could possibly be better than taking the views of the Founders and applying them directly to our current legal dilemmas? In that way, we would truly be exercising our steadfast loyalty to the Constitution.

The problem, though, is that constitutional originalism rests upon the fundamentally incorrect assumption that the Founders all had a collective and monolithic intent when they drafted the Constitution.

They did not. One of the earliest constitutional disputes in our nation’s history makes clear that relying solely on the philosophy of originalism can prove toxic to the proper functioning of our government. 

When Alexander Hamilton joined the administration of George Washington as Secretary of the Treasury, he had a momentous task before him. He had to restore the nation’s finances, which were in a good deal of trouble following the war. His plan began with the notion that the establishment of a national bank would better allow for the restoration of the country’s economy.

This proposal faced considerable opposition from many statesmen of the time, notably Thomas Jefferson and Washington. The debate essentially hinged on three words: “necessary and proper.” Nowhere in the Constitution did it expressly state that there must be a national bank, so in order to justify his case, Hamilton had to prove that it was an implied power of the federal government.

He did so by claiming that “necessary” did not translate to Jefferson’s interpretation of the word, which was that the provision proposed had to be indispensable to the proper functioning of the government. Hamilton instead appealed to the more common use of the word, which was often understood as meaning “useful” or conducive to the achievement of a given end.

Ultimately, Hamilton prevailed and the government established the national bank. But that is not what should be remembered of this example.

The political scientist Carson Holloway has deduced from the debate over the constitutionality of the national bank that both — Hamilton and Jefferson offer an excellent lesson in what he calls “constitutional fidelity.”

While Hamilton and Jefferson both thought that the other was “clearly wrong” in his interpretation, each one nonetheless analogously engaged in discourse that remained faithful to the original words of the Constitution. Stated simply, each one equally employed the jurisprudence of originalism and did not attempt to prove his case “by a peremptory invocation of the words of the text.” Therefore both men illustrate the enduring relevance of originalism.

However, Holloway’s investigation of the national bank should actually lead us to a very different conclusion.

In order to interpret the Constitution with optimal efficacy, associate Supreme Court justice Stephen Breyer has stated that we have six essential tools: text, history, tradition, precedent, purpose and consequence.

All of them must be considered, and all of them have their place in understanding constitutional questions.

Breyer correctly goes on to proclaim that originalists tend to emphasize the first four, while avoiding the last two, because they believe that in doing that, one is less likely to interpret subjectively.

Yet no one of good faith would seriously contend that Alexander Hamilton took that approach when considering the constitutionality of the national bank. He instead recognized that the intrinsic beauty of the Constitution is that it lends itself towards adaptability, and that purpose and consequence must be considered when rendering a judgment on the constitutionality of the national bank.

Had Hamilton rigidly adhered to originalist philosophy, the national bank would likely not have been established, and the fate of the country’s economy would have hung in the balance. But his recognition of the importance of purpose and consequence and his understanding that adhering exclusively to originalist jurisprudence was inadequate, allowed for the government to function much more efficiently.

While the Founders did not have a shared and unified intent when they drafted the Constitution, (as Holloway’s illustration makes readily apparent) they all certainly subscribed to the idea that we should act upon any effort that leads us towards the betterment of our democratic government. The Constitution, while it was of course designed to impose limits upon government, should likewise not paralyze it.

Modern statesmen should take Hamilton’s example to heart, and realize that true fidelity to the Constitution does not require originalist jurisprudence.