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The Palpable Fallacy of Supreme Court Originalists

by Woody Holton

Mr. Holton is associate professor of history at the University of Richmond and the author of the award-winning book Forced Founders: Indians, Debtors, Slaves, and the Making of the American Revolution in Virginia and, most recently, Unruly Americans and the Origins of the Constitution, which is a National Book Award finalist.

One of Washington’s open secrets is the conservative counter-revolution that John Roberts and Samuel Alito have been carrying out on the Supreme Court. The new conservative majority’s fundamental claim is that the courts ought to step back and let legislative majorities work their will, for instance by banning abortion. That, they say, is what the Founding Fathers intended when they wrote the Constitution.

What the hell are they talking about? Majority rule was not at all what the Founding Fathers intended. In fact their principal goal in adopting the Constitution was to rescue the nation from what two framers—Elbridge Gerry of Massachusetts and Alexander Hamilton of New York—both called an “excess of democracy.”

America’s first decade—the eleven years between the signing of the Declaration of Independence in 1776 and the adoption of the Constitution in 1787—was also its most momentous. Against all odds, free Americans achieved home rule—and immediately started battling over who would rule at home.

By 1783, when Britain finally acknowledged American independence, the nation’s most prominent citizens—men like George Washington and James Madison—were comparing the American Revolution to a wild horse. And they were saying it was time for this “unruly steed” to be reined in. In particular, the Founding Fathers believed the thirteen state legislatures had been overrun by ordinary farmers who didn’t know what they were doing. The assemblymen’s worst offense had been to cave in to the demands of two overlapping constituencies that together comprised the vast majority of voters: debtors and taxpayers.

Some state legislatures had allowed indebted farmers to satisfy their creditors with property—even “old horses”—instead of actual gold or silver. Others had temporarily closed state courts, making it impossible for creditors to sue delinquent debtors. And every state had adopted some form of tax relief.

Men like Washington and Hamilton believed the state assemblies had turned the United States into a paradise for people who didn’t like paying either their taxes or their private debts. All of this was manifestly unfair not only to private creditors but to everyone who relied upon payments from the government—primarily the investors who had bought up the bonds that had financed the Revolutionary War.

Tax and debt relief were bad for the economy, too. How could either private individuals or public officials expect anyone to lend them money in the future if the state assemblies freed debtors and taxpayers from any responsibility for paying what they already owed?

These issues were very much on the minds of the Founding Fathers when they gathered in Philadelphia 220 years ago. They wrote a Constitution that prohibited state assemblymen from shielding debtors from their creditors. The new national charter also gave the federal government what it had never had before: the power to levy taxes. That allowed federal officials to pay off the holders of government bonds.

And to make the United States government less likely to follow the thirteen state legislatures down the crooked path of protecting delinquent debtors and taxpayers, the framers of the Constitution made it considerably less democratic than any of the state governments. No legislation that passed the one directly-elected body, the House of Representatives, would become law without the approval of the indirect-elected Senate (which was chosen by the state legislatures until 1913), the President, and (if the law were challenged) the Supreme Court.

During the Revolutionary era, most state legislators served for only one year at a time, as did delegates to the Confederation Congress. But members of the newly-created U.S. House of Representatives would serve for two years and Senators for six. The president would have a four-year term, and federal judges would, as long as they behaved themselves, serve for life.

Recently historians have begun to question the Founding Fathers’ contention that the American Revolution had made the United States too democratic. I’m one of them. At the time thousands of Americans acknowledged that the economy was in trouble but attributed the downturn to elite, not popular, misrule. I think they have a point.

Yet it is clear that the Founding Fathers sincerely believed the thirteen state governments had become too responsive to the public will—and that the best way to make the country less democratic was to adopt the Constitution. The Supreme Court needs to decide whether to base its decisions on the framers’ original intent or on the principle of majority rule. It can’t do both.