Joseph J. Ellis: Immaculate Misconception and the Supreme Court
[Joseph J. Ellis, a professor of history at Mount Holyoke College, won the 2001 Pulitzer Prize in history for his book "Founding Brothers" and the National Book Award for "American Sphinx: The Character of Thomas Jefferson."]
...[T]he constitutional doctrine of original intent has always struck most historians of the founding era as rather bizarre. For they, more than most, know that the original framers of the Constitution harbored deep disagreements over the document's core provisions, that the debates in the state ratifying conventions further exposed the divisions of opinion on such seminal issues as federal vs. state jurisdiction, the powers of the executive branch, even whether there was -- or should be -- an ultimate arbiter of the purposefully ambiguous language of the document.
Moreover, several of the most prominent Founders changed their minds in the ensuing years. Perhaps the most dramatic example is James Madison, often called "the father of the Constitution." During the debates in Philadelphia, Madison was one of the most ardent advocates for federal sovereignty, going so far as to propose a federal veto over all state legislation. But slightly more than a decade later, he authored the Virginia Resolutions, the classic case for state sovereignty over all domestic policy, and later, much to his chagrin, the major reference in South Carolina's secessionist claims during the Nullification Crisis.
The doctrine of original intent rests on a set of implicit assumptions about the framers as a breed apart, momentarily allowed access to a set of timeless and transcendent truths. You don't have to believe that tongues of fire appeared over their heads during the debates. But the doctrine requires you to believe that the "miracle at Philadelphia" 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.
Any professional historian proposing such an interpretation today would be laughed off the stage. That four sitting justices on the Supreme Court -- Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito -- claim to believe in it, or some version of it, is truly strange. We might call it the Immaculate Conception theory of jurisprudence. Even more disconcerting is the fact that the very justices most disposed toward wrapping their opinions in the protective armor of original intent have consistently voted in support of the conservative political agenda championed by the Republican Party....
Read entire article at WaPo
...[T]he constitutional doctrine of original intent has always struck most historians of the founding era as rather bizarre. For they, more than most, know that the original framers of the Constitution harbored deep disagreements over the document's core provisions, that the debates in the state ratifying conventions further exposed the divisions of opinion on such seminal issues as federal vs. state jurisdiction, the powers of the executive branch, even whether there was -- or should be -- an ultimate arbiter of the purposefully ambiguous language of the document.
Moreover, several of the most prominent Founders changed their minds in the ensuing years. Perhaps the most dramatic example is James Madison, often called "the father of the Constitution." During the debates in Philadelphia, Madison was one of the most ardent advocates for federal sovereignty, going so far as to propose a federal veto over all state legislation. But slightly more than a decade later, he authored the Virginia Resolutions, the classic case for state sovereignty over all domestic policy, and later, much to his chagrin, the major reference in South Carolina's secessionist claims during the Nullification Crisis.
The doctrine of original intent rests on a set of implicit assumptions about the framers as a breed apart, momentarily allowed access to a set of timeless and transcendent truths. You don't have to believe that tongues of fire appeared over their heads during the debates. But the doctrine requires you to believe that the "miracle at Philadelphia" 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.
Any professional historian proposing such an interpretation today would be laughed off the stage. That four sitting justices on the Supreme Court -- Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito -- claim to believe in it, or some version of it, is truly strange. We might call it the Immaculate Conception theory of jurisprudence. Even more disconcerting is the fact that the very justices most disposed toward wrapping their opinions in the protective armor of original intent have consistently voted in support of the conservative political agenda championed by the Republican Party....