I revisit this debate on the validity of what is described as "Originalism" I wrote about almost four years ago in light of the recent carelessly drawn Supreme Court Decisions on abortion, administrative agency authority, and guns.
A Perspective on the Debate about "Originalism"
SEPTEMBER 22, 2018
COMPARING THE U.S. CONSTITUTION (1788) TO THE ARTICLES OF CONFEDERATION (1781) – THE PERSPECTIVE IT OFFERS ON THE DEBATE ABOUT “ORIGINALISM”
We are reading a lot of discussion, triggered by the nomination of Judge Kavanaugh to the Supreme Court, about the merits of “originalism”—that is, a doctrine which calls for rulings based on the literal reading of the Constitution and the best understanding of what the Framers meant by that reading.
Walter Williams’ column of 9/16/18 raises a fundamental question, as it cites two different sections of the Constitution which can lead to different conclusions on which responsibilities should be assumed by the Federal Government and which by the States.
The first cites James Madison and Federalist Paper 45: “The powers delegated by the proposed Constitution to the Federal Government are few and defined” (dealing with external objects, such as war, peace, negotiation and foreign commerce), “the powers (delegated) to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people.”
The other section comes from the Constitution’s Article 1, Section 8 with the phrase calling for the Federal Government to “provide for the common Defense and General Welfare of the United States.”
The question? What constitutes General Welfare?
Williams notes that in 1817, Thomas Jefferson wrote “Congress had unlimited powers to provide for the general welfare, but were restrained to those specifically innumerated.”
Since then there have, of course, been Constitutional Amendments (e.g., securing the vote for all; banning slavery) which resulted in the Federal Government’s assuming roles previously conferred to the states with inhumane consequences.
In addition to the Amendments, there has been legislation (often controversial) which has seen the Federal Government undertake programs for the general welfarenot specifically innumerated in the Constitution (e.g., Social Security, workers’ safety).
I don’t believe it would have been at all surprising to the Framers to see that learning experience have led to the adoption of Amendments and Federal legislation, conferring Federal authority on issues previously in the province of the states because they bear vitally on the general welfare.
Why do I say they wouldn’t be surprised? Importantly, they were vividly aware of the number of significant changes that had needed to be made in the Articles of Confederation in the seven short years between their adoption and the adoption of a new set of standards in our Constitution.
Here are just a few examples of the changes that occurred in that seven-year period.
1. Establishment of new states. Articles: required agreement of nine states. The Constitution required agreement of Congress.
2. Congressional pay. Articles: paid by the states: Constitution: paid by the federal government.
3. Appointment of Members. Articles: all appointed by state legislatures, in the manner each legislature directed. Constitution: representatives elected by popular votes in the states, senators appointed by state legislators.
4. Executive. Articles: none. Constitution: president.
5. Amendments to the Constitution. Articles: when agreed upon by all states. Constitution: when agreed upon by ¾ of all states.
6. Navy. Articles: Congress authorized to build a navy; states authorized to equip war ships to counter piracy. Constitution: Congress authorized to build a Navy; states not allowed to keep ships of war.
7. Power to mint money. Articles: United States and the states. Constitution: United States only.
My purpose in citing these differences is not to suggest that the Constitution isn’t the foundation document which must be greatly respected. It is to suggest that recognizing that in seven short years the founders had changed their minds on what constituted the correct role between the states and the federal government, it should not be surprising that over the course of the following 230 years, there would be changes in what constitutes the proper role of federal and state governments to achieve a condition of general welfarefor the citizens of the United States that is most desirable.
It can be (and will be) argued that such changes should be embodied in amendments as they have in many cases. However, it is also appropriate that such changes be embodied in legislation. The Supreme Court has the responsibility to review the correctness of this legislation in light of the Constitution but it should bear in mind that—just as was the case between the Articles of Confederation and the U.S. Constitution—we should be open, based on experience, where responsibility should be allocated between the federal government and state government.
“Originalism,” if taken to the point that we can only do what Thomas Jefferson would have viewed as correct in 1817, would be a position that I feel certain Thomas Jefferson would have declared to be wrong.
Let me emphasize that I hew strongly to what would be described as a “conservative” (I’d prefer “liberal”) position on the importance of honoring State’s rights. I do so for two reasons. First, because states do differ in their history, experience and needs of their citizens. Second, and in some ways more important, states have and can serve as laboratoriesfor new learning on how to resolve and best deliver services needed to advance the welfare of the nation’s citizens. To take only one example—allied closely to my own interests—it has been the experience of different states in advancing early childhood development and pre-school education that has shown not only their value but the best ways of achieving that value.
As other examples, while I believe access to affordable, quality health care is a right that should be available to all citizens (without good health, what chance does anyone have to achieve a fulfilling life?), I agree that giving states latitude in how to best achieve that objective makes great sense because we have much more to learn. Interestingly (and rather ironically) on health care, it was the initiative of Republican Mitt Romney as Governor of Massachusetts which produced a template which was largely adopted by President Obama with the Affordable Care Act. (This, despite the fact that it has been vigorously attacked by Republicans.)
I believe the decision as to how much latitude states should have in enacting a federally mandated right will forever be a matter for legislative and judicial dispute. Take voting. The right of every person to vote is now constitutionally mandated through the 15 thand 19thAmendments. However, states still have significant latitude in how the right to vote is administered and enforced. Some “methods of administration” amount to clear-cut “suppression”; for example, literacy tests, which are now banned. Others are more subtle such as restricting the number of polling places or the days and hours of pre-election day voting. They will undoubtedly be the subject of continued adjudication. The guiding rule should be to take every reasonable step to allow every citizen to exercise his or her right to vote.
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