Originalism: Founders, Judges and Modesty

Address to the 2011 Constitutional Law Conference, Sydney

RTF version

In January this year in Tuscon Arizona, an obviously disturbed young man shot a number of people, killing among others a Federal Court Judge and a nine-year old girl. A Member of Congress was seriously wounded. There was some speculation in the media that this incident might reawaken public debate in the U.S. about the ready access to firearms allowed in that country. That speculation has proved to be groundless; there has been no public debate about that issue. No US politician seems to want to take the issue on. And to be fair to those politicians, any debate would be a waste of their own and the public’s time.

In 2008, in District of Columbia v Heller ^[1] the Supreme Court of the United States had to decide whether a federal law passed in 1975 forbidding possession of handguns, loaded rifles and loaded shotguns within the District of Columbia, was in violation of the Second Amendment to the US Constitution. The court ruled by a majority of 5-4 that it was. The opinion for the majority was written by Scalia J.

In 2010 in McDonald v Chicago ^[2], the Supreme Court, in an opinion written for the majority by Alito J, extended Heller to strike down most gun-control laws in the States as well.

The state of affairs brought about by these very recent decisions is remarkable: it is not vouchsafed to the collective wisdom of American citizens of the present generation, alone of all the peoples of the earth, to determine whether there should be legal limits upon the general availability of firearms in their country. I thought it might be opportune this evening to reflect upon the circumstances whereby this generation of the American people came to be so diminished, and upon what these circumstances might say to those of us who admire, and may even be disposed to emulate aspects of, American constitutional arrangements and jurisprudence.

As to the circumstances which led to this state of affairs, the decisions in question seem to be a triumph for the originalist approach to constitutional interpretation. Justice Scalia is the Court’s leading originalist. Originalism is, of course, the theory of constitutional interpretation which looks to interpret the text of the Constitution by reference to evidence of what the Framers really meant.

There are some general difficulties with originalism as an approach to constitutional interpretation. It may seem a little optimistic to look to extraneous expressions of the attitudes of men, who lived at the very beginning of the Industrial Revolution, to derive a definitive understanding of how national life should be organized two hundred years after their death. There is reason to think that they did not have such a grand ambition but were much more modest in their expectations.

In M’Culloch v State of Maryland ^[3], Chief Justice Marshall described the Constitution as “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” Some might think that the not infrequent massacre of ordinary citizens and the nobler politicians by troubled souls would qualify as a “crisis of human affairs”.^[4]

At the other end of the political spectrum at the time of the founding, Chief Justice Marshall’s distant cousin, and sworn political enemy, Thomas Jefferson, when he was the US Ambassador to France, wrote to his friend James Madison less than two months after the fall of the Bastille:

“No society can make a perpetual Constitution or even a perpetual law. The earth belongs always to a living generation.”^[5]

Further, it seems unduly optimistic to assume a level of unanimity among the Founders about matters on which some did not express a view outside the Constitutional text on a given subject. Indeed they may even have had views contrary to those expressed in the text which they deliberately suppressed for the sake of reaching a workable consensus.
Benjamin Franklin said as much in his remarks to the Federal Convention before the adoption of the Constitution in 1787. Franklin said:

“For having lived long, I have experienced many instances of being obliged by better Information, or fuller Consideration, to change Opinions even on important Subjects, which I once thought right, but found to be otherwise.”

Franklin said that he hoped:

“that every member of the Convention who may still have Objections to it, would with me, on this occasion doubt a little of his own Infallibility, and to make manifest our Unanimity, put his name to this Instrument… Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best.” ^[6]

Finally on this point, the principal draftsman of the US Constitution, the redoubtable Gouverneur Morris, rejected the idea of trying to resolve uncertainties by looking at the contemporaneous views of the Founding Fathers outside the constitutional text. In 1803 he wrote the following in a letter replying to a query about the intent of the Framers of the US Constitution on a particular point:

“It is not possible for me to recollect with precision all that passed in the Convention while we were framing the Constitution; and, if I could, it is most probable that meaning may have been conceived from incidental expressions different from that which they were intended to convey, and very different from the fixed opinions of the speaker.” ^[7]

Anyone who has experience of the process of producing a document in committee will appreciate the force of what Morris wrote.

The originalist approach has previously led to results which seem, to us at least, distinctly odd. Thus in 1998 in Grupo Mexicano de Desarrollo SA v Alliance Bond Fund, Inc, ^[8] Scalia J, delivering the opinion of the Court, over the dissent on this point of Stevens, Souter, Ginsburg and Bryer JJ, held that US Federal Courts have no power to grant Mareva injunctions or Anton Pillar orders because the content of the equitable jurisdiction of the Federal Courts was fixed in 1789 when US law ceased to be tied to that of England at which time the Court of Chancery had not yet exercised any such power. 

To conclude that wholesome developments of equitable jurisdiction, such as the Mareva injunction, were thereby forever denied to US Federal Courts seems a little extreme. On this approach, the Chancellor’s foot was not merely measured, it was amputated and then kept in formaldehyde.

These general difficulties aside, an examination of the two recent Supreme Court cases on the Second Amendment provides particular reason to doubt whether an originalist approach to Constitutional interpretation can, in truth, sustain the interpretation placed upon the Constitutional text by the majority.

Let us look at the Constitutional text. The Second Amendment says:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The minority of the Supreme Court judges in Heller, Justices Stevens, Souter, Bryer and Ginsburg were of the opinion that the right conferred by the Second Amendment was conferred, not upon individuals, but upon the People, to ensure the maintenance of a well-regulated militia.

One might respectfully observe that their Honours’ opinion seems to reflect the plain meaning of the text. The right conferred by the Second Amendment is expressly said to exist for the purpose of facilitating the existence of a militia. That militia is itself to be “well-regulated”; not, be it noted, “well-armed” or “well equipped”, but “well-regulated”. I take it as obvious that regulation of the militia would extend to regulating the use of firearms by the members of the militia as such: their officers could, for example, expect to be obeyed if they ordered them to lay down their arms. It seems odd that on the authority of these recent decisions, the use of firearms by members of the militia may be regulated, but not the use of firearms by individuals outside the militia.

More importantly, the right to keep and bear arms is expressed to inhere in the People. It is “the People” who brought forth and announced the establishment of their new system of government in the Constitution. The US Constitution expressly proceeds on the postulate, stated in Article 1, Section 2, and the First, Second, Fourth, Ninth and Tenth Amendments, that “the People” exists as a community organized and functioning as such in their town halls, churches and village greens, in the several states, anterior to the arrangements put in place by that People for the government of the United States.

To put the point directly, the Constitutional text does not suggest that a law which prohibits the possession of firearms, otherwise than in accordance with a state law regulating its militia, abridges the People’s right to keep and bear arms.

To support the conclusion that the language of the Second Amendment is, as a matter of its original intent, apt to guarantee the keeping of weapons by individuals as an end in itself, Scalia J, who wrote the majority opinion in Heller,referred to the writings of Blackstone. It is not surprising that those who accept the originalist premise should look to Blackstone to discover the original intent. In 1999, in Alden v Maine, ^[9] the US Supreme Court described Blackstone’s work as “the pre-eminent authority on English law for the founding generation”.

Scalia J, writing for the majority in Heller, said of Blackstone:

“By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122-134. Blackstone, whose works, we have said, ‘constituted the pre-eminent authority on English law for the founding generation,’ cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139-140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, ‘the natural right of resistance and self-preservation,’ id., at 139, and ‘the right of having and using arms for self-preservation and defence,’ id., at 140; see also 3 id., at 2-4 (1768). Other contemporary authorities concurred. See G. Sharp, Tracts, Concerning the Ancient and Only True Legal Means of National Defence, by a Free Militia 17-18, 27 (3d ed. 1782); 2 J. de Lolme, The Rise and Progress of the English Constitution 886-887 (1784) (A. Stephens ed. 1838); W. Blizard, Desultory Reflections on Police 59-60 (1785). Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence.” ^[10]

Blackstone

The irony of invoking the support of Blackstone for this “natural right” can be seen first by noting that in 4 Commentaries 55, Blackstone recognized that this supposedly fundamental natural right was not so fundamental or natural that it could not sensibly and lawfully be abridged in the case of English Catholics convicted of the heinous crime of not attending service in the Church of England. Thus Blackstone saw the right to bear arms as limited to his people, principally, the loyal Protestant yoemanry.

We can be confident that the framers of the US Constitution, slave-owners and non slave-owners alike, had the same view. They certainly did not intend that the right to keep and bear arms be guaranteed to each of the millions of black people who were enslaved in the US at the time.

I respectfully suggest that Blackstone does not afford satisfactory support for the view that when the Second Amendment speaks of “the People” it means “each individual”.

And, it would also not be entirely flippant to say that, if the proponents of originalism were consistent, the only arms which the Second Amendment could be taken to permit are muskets, knives, swords, pikes and muzzle-loading cannon, not automatic rifles or pump action shotguns.

That the words of the Second Amendment guarantee of the possession of firearms by unregulated individuals was not, until these very recent decisions, a view supported by the Court’s decisions. It was not an article of legal faith even on the part of conservative lawyers.

In this regard, in 1989, Robert Bork, a leading proponent of originalism, acknowledged that the Second Amendment serves “to guarantee the right of states to form militias, not for individuals to bear arms.”^[11]

The argument that the Second Amendment guarantees the right of individuals to bear arms seems to have first come to prominence, not in the Court’s own precedents, but as a result of agitation by the National Rifle Association in response to gun control laws passed in reaction to the assassinations of John Kennedy, Martin Luther King and Robert Kennedy. This campaign led the former Chief Justice Warren Burger to say in 1991 that the NRA’s campaign on the Second Amendment was “one of the greatest pieces of fraud, I repeat the word ‘fraud’, on the American public by special interest groups that I have ever seen in my lifetime”. ^[12]

Visions of nationhood

How then can we understand the majority judges reading of the text? How did they come to interpret the text as they did?

The Chief Justice of the United States, on his visit to Australia in July last year, gave a speech in which he made the point that the Bill of Rights was very much the product of historical circumstances of the founding of the United States. The Chief Justice was, of course, a member of the majority in each of the decisions under discussion. His speech may afford some insight into the cultural lens through which the majority viewed the constitutional language. He said:

“America’s first colonists were strong-willed individualists who chose to start a new life in an unknown land. Most were English subjects who came from a heritage of English liberties reaching back to Magna Carta. They brought a conception of individual rights with them. For example, the first charter of the colony of Virginia, written in 1606, provided that colonists and their descendants ‘shall have and enjoy all liberties, franchises and immunities as if they had been abiding and born in this our realm of England’. The American writer Ralph Waldo Emerson stated early in our history that Americans began with freedom. As he put it ‘America was opened after the feudal mischief was spent and so people made a good start, we began well’.”

Roberts CJ went on to say:

“But we did not begin content. The American colonists did not arrive on new soil satisfied with the status quo. Some of America’s first colonists, like the Pilgrims, the Puritans and the Quakers, came to America seeking broader religious liberty. Others sought the opportunity to own land, to escape a rigid class structure, or to seek out in an undefined way a life better than the one they had left. They came, in the candid words that would appear in the Declaration of Independence, ‘to pursue happiness’. Their notions of liberty thus arose not only from their English background, but also from widely shared personal aspiration. Those notions took root and flourished without formal efforts at cultivation in the untamed new world environment.
…
The American colonists began to consider the theoretical basis for their rights, and they naturally gravitated toward John Locke’s theory of social compact. That theory rested on a political perspective that was very easy for the New World colonists to visualise. People existed before governments and people in the state of nature entered the world with god-given natural rights that they may curtail or surrender to government only by free consent.”

We may note that the Chief Justice refers to ‘people’, not to ‘The People’. He speaks of people being born with natural rights, but not, it would seem, with companions.

Chief Justice Roberts went on:

“The King of England did not share that perspective. But for the generations that were born in America, the monarch must have seemed distant and his divine rights and abstraction far removed from their experience. The land that the colonists had entered was far closer to Locke’s state of nature than the one they had fled. By the mid 18th Century a succession of generations had tamed wild lands and constructed farms, villages and town halls with their own hands. Those Americans had no difficulty embracing the notion that people also created government and that government existed only by virtue of a compact expressing the consent of the governed.”

The Chief Justice’s speech affords a compelling statement of the individualist vision of the gestation of the US Constitution. But like all visionary statements, the resonance of the statement depends on the time, circumstances and experience of the audience. The notion of “the People” does not figure prominently in this vision, that is the People as a civilized community which organizes militias and wages war, not with sticks and stones, but with sophisticated weapons which can only be produced by civilization and the organized division of labour which civilisation supports.

For many Americans, it may be that the vision of a man and his musket carving his own happiness out of the state of nature where opposition, natural or human, is something to be overcome is a compelling vision of the individualist foundations of the United States: it is, after all, a vision that inspired two generations of Wild West movies. But many modern Americans may be disappointed to known that they are governed under the Constitution according to “The Man Who Shot Liberty Valance.”

Many city dwellers of the 21st Century, imbued with the bourgeois values of non-violence, civic mindedness and peaceful co-operation, may not be persuaded or inspired by that vision. They may see this vision as part of the national myth, of some value to sure, but not an indispensible part of the Founders’ legacy by which their existential choices should be curtailed.

Something of this perspective was recently expressed by the satirist Jon Stewart who commented that North America was “settled remarkably quickly thanks to the extermination of one race, the enslavement of a second, and the can-do attitude of a third”.

Many modern Americans may query whether this reading of the Constitutional text by the light of the claims of the 17th Century for the individual in the state of nature reflects the state of nature conceived by Locke, who shared, or perhaps more correctly, inspired, Blackstone’s postulate of a “polite and commercial people” which, in America, joined together to make their own political arrangements, or that much bleaker state of nature conceived by Thomas Hobbes: the war of all against all where life is “solitary, poor, nasty, brutish and short”.

I am not suggesting that the sceptics would be right, or even that those who hold these views are in the majority of American citizens. It is simply that it is a remarkable state of affairs that their views don’t matter even if they do happen to be in the majority; and it is a state of affairs that the Constitutional text does not demand.

Conclusion

Arnold Toynbee discussed the differences in the scope for interpretation between a sacred text and a sacred tradition guarded by a priesthood. He said:

“An authoritarian scripture suffers…from a weakness from which an authoritarian (priesthood) is exempt. The possibility of re-interpreting a written text to meet a changeless human nature’s every-changing situation is more narrowly circumscribed than the possibility of a re-interpreting the unwritten lore of a hierarchy or a body of doctors or fathers claiming to be inspired by a Holy Spirit, which, like the wind, ‘bloweth where it listeth”. ^[13]

The Supreme Court’s decisions illustrate that, even with a sacred text, Toynbee was correct only insofar as the ethos of the guardian priesthood is effective to constrain it to recognize that it is less powerful than the sacred text. Otherwise, subjective and contentious reinterpretations may develop a life of their own drifting free of the sacred text. ^[14] And because those reinterpretations have the force of the Constitution, the possibility of a different outcome is foreclosed to the People.

If we accept that, as Jefferson thought, a Constitution exists to serve each living generation, these cases afford a salutary reminder to those who regard the United States with deep and abiding affection and their scholars and judges with admiration, of the need to accord pre-eminence to the constitutional text, and of the need for respect for the precedents which have settled its interpretation.

In the absence of relevant precedents it is important to have a modest appreciation of the value of one’s own historical insights about the intent of the Founders. That modesty must include a willingness to resist the exhilarating belief that one is the first to reveal a great truth. And it should be not less than that exhibited by the Founders themselves.