We should read each legal document according to the plain sense of the text: the sense that was understood by its authors, or perhaps by the people by whose authority it became law. The task of interpretation is, in essence, a historical one. It should be concerned with past realities, not present conjectures. That is as compelling a definition of originalism as I can muster.
I’m not going to get into originalism deeply here. I just wanted to share a few lines from the pen of Alexander Hamilton. There’s a point where the argument for originalism folds in upon itself logically: the point where originalist historians and lawyers want to show that the authors or ratifiers of the original text intended or understood it to be interpreted according to its original intent or meaning. Originalist historiography then becomes a historiography of originalism itself. Lawyers, in my small experience, tend to like this, because they like doing the history of other lawyers.
Hamilton was a lawyer but it wasn’t what took up most of his life. Like Madison, you might say he was less a lawyer by profession than by temperament. Christopher Gadsden, a ‘radical’ back-country politician from South Carolina, hated lawyers almost as much as he hated the low-country planter aristocracy. Although the lawyers themselves weren’t the ones with the enormous slave plantations and the fancy mansions, they had their own kind of power. It wasn’t just that they were instruments of the aristocrats: as Gadsden had it, they had more influence than that. A slimy, Pharisaical, sophistic kind of influence.
Of course, what lawyers like more than anything is to characterise their opponents as crafty and themselves as plain, honest men. Hamilton used the same trick in his “Phocion” letters, published in New York in 1784, when the question at hand was the treatment of loyalists and their property after the British had evacuated and patriots had returned to the city.
“These are the difficulties involved,” Hamilton wrote, “by recurring to subtle and evasive, instead of simple and candid, construction.” He recalled a funny story about a Roman general who had made an agreement to return half the ships captured from an enemy. The general sawed the ships in half and sent them back. It reminds me of the Labour MP who declared in Parliament that “half the members opposite are liars.” Asked to retract his statement, he did so: “I apologise, Mr Speaker. Half the members opposite are not liars.” Anyway, apparently Hamilton didn’t appreciate the Roman’s wit. “Such fraudulent subterfuges are justly considered more odious than an open and avowed violation of treaty.”
His opponents in interpreting the Treaty of Paris were “posture-masters in logic” and “political jugglers,” he said. By contrast, his own arguments were “as old as any regular notions of free government among mankind;
and are to be met with not only in every speculative writer on these subjects, but are interwoven in the theory and practice of that code which constitutes the law of the land. They speak the common language of this country at the beginning of the Revolution, and are essential to its future happiness and respectability.
He had, in short, captured the common sense of the matter. One could even say he had captured the treaty’s public meaning.
A good criterion by which to determine the meaning of the treaty, in this respect, is, to recur to the impressions that it made on its first appearance, before there had been time to contrive and substitute an artificial to the natural and obvious sense of the words. Every man, by appealing to his own bosom, will recollect that he was at first struck with an opinion that the disaffected were secured from every future deprivation and injury whatever; and however many may have been chagrined at the idea that they should be admitted to a parity of privileges with those who had supported the Revolution, none doubted that this was the sense of the treaty.
Hamilton famously quoted Madison’s words of the Federalist back at him during the debate over the National Bank. He was reminding his old friend (that is, his friend of old) of the original understanding of the elastic clause. Which is funny, because we (well, I) normally think of strict constructionists like Madison and his pal Jefferson as the original originalists. As Hamilton put it in the second “Phocion” letter, “thus we have another example how easy it is for men to change their principles with their situations.” That sentiment echoes Franklin’s quip, in the Autobiography, that reason is a useful thing for it “enables one to find or make a reason for every thing one has a mind to do.”
Of course, Hamilton wasn’t an originalist. That isn’t the point at all. The lines of argument I’ve quoted weren’t the only ones he used to defend his construction of the Treaty. Most of what he wrote was about political utility. The point, rather, is this: originalist-style positions could be useful to Americans in the new republic when they wanted to achieve their particular political-economic ends; just as they are useful to politicians and judges today, when they want to achieve, under the sign of justice, any thing they have a mind to do.