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.
I too used to think the Jeffersonians were strict constructionists until I delved into the microfilmed Annals of Congress. While reading the debates concerning public credit and Madison’s plan of discrimination, I was amazed at the number of speakers arguing for Congress having “omnipotent” powers like a court of equity or, gasp, British Parliament to intervene on the behalf of alienated securities holders . Of course after 1800, we have New England Federalists espousing principles indistinguishable from the Anti-federalists of 1788.
You make an excellent point concerning the motives and contexts in which historical figures use ideas. Of course, the joke is on modern adherents of originalism who expect the “founding fathers” to have the answers, since we know the “founders” couldn’t even come to a consensus on even simple matters like the postal clause.
Great post, Tom – I think our desire to fit the Founders into little boxes that make sense to us in the modern-day but wouldn’t have made sense back then is one of the biggest reasons that Revolutionary history (in a professional sense) doesn’t have the impact on public debate that it might.
Your post also shows the problem with originalism – that the Founders disagreed with each other so much that there’s a large enough grab-bag of garbled ideas that allows any hack to find some justification for the argument they want to make. Originalist jurisprudence of the Second Amendment makes this abundantly clear.
Absolutely – on the “little boxes” point, this is an area I think Bill Hogeland has covered really well lately. Of course one set of boxes that don’t work are the ones labelled “left” and “right”. With the way our political consciousnesses are shaped by that paradigm, I remember finding it really hard to break out of thinking about eighteenth century politics in that way – and I’ve found teaching students how to think that through really difficult, too (although also fun!).
Thanks, I enjoyed this. I would add, that Hamilton certainly was a “professional” lawyer in at least one documented case that I know of when he created a unique land tenure vehicle, essentially an unfinished sale, for his brother-in-law Stephen Van Rensselaer III, so that he and his proprietor cohort could continue to rent their lands and exact services from tenants in a quasi-feudalistic manner. He did this to side-step the abolition of entail in the State of New York. This is ironic, considering people today tend to think of Hamilton as a forward-thinking economic liberal. Yet in this case, he was enabling Hudson River oligarchs to continue to extract wealth from their lands in a very “old fashioned” way.
Hey Taylor, I didn’t know about that land tenure vehicle – that’s really interesting, thanks! I’m guessing that was in his second period as a working lawyer, post-1796, not in 1784-7?
Originalism is a kind of back door which allows lawyers to think themselves historians. If it wasn’t having such an impact, it would almost be laughable. It seems wholly illogical to treat this document as a sacred text when almost none of the men who wrote it were completely happy or satisfied with it and of whom a good number were highly skeptical and pessimistic regarding its possibilities for success. Originalism, like much bad history, removes contingency from the equation, hence it is nothing less than a form of legal Whiggism for those who truly believe it. But, I agree with Tom, that many of those who talk of originalism do so largely because (and when) it suits their own interests. One need only look at Justice Scalia’s recent comments to see that dynamic in action.
On a side note, the despising of lawyers began almost as soon as the occupation became professionalized in the colonies in the early-to-mid eighteenth century. The De Lanceys, the most powerful political faction (of Anglicans/merchants) in colonial New York won back control of the assembly in two elections at the end of the 1760s with anti-lawyer rhetoric like this from a 1768 electioneering broadside:
From a purely rhetorical perspective, the second half of that sounds awfully familiar.
*Philanthropos, “To the Freeholders and Freemen of the City and County of New-York,” broadside, New York, [February] 1768. Evans, no. 11040.