COMMENTARY: A critique of constitutional originalism

Constitution and Citizenship Day, which was celebrated Saturday, affords Americans the opportunity to celebrate the document by which our government is run and to count the blessings of U.S. citizenship.

Despite the Constitution’s advanced age, it has lasted longer than any similar document in world history. The reason has to do with the flexible, adaptable nature of the Constitution.

One approach to the Constitution — referred to as “originalism” — posits that the document must only be regarded as saying what the framers meant at the time and that the language of provisions must be followed literally and narrowly. In contemporary times, originalism has meant opposition to an activist judiciary and support for states’ rights. Some noteworthy jurists supporting this doctrine include late Supreme Court justices Antonin Scalia and Hugo Black, together with current Associate Justice Clarence Thomas.

Dr. Samuel B. Hoff

Dr. Samuel B. Hoff

There are a number of deficiencies with the originalist position. First, to assume that we can pin down what the framers meant in every part of the Constitution is fallacious. In some instances, those delegates at the 1787 Constitutional Convention who contributed to the drafting of the Constitution argued for more than they knew would be approved. In other cases, the framers at the Philadelphia convention indicated that they did not want their intentions to control interpretations.

Finally, as experienced as the convention delegates were, the open-ended, vague language employed in certain areas points to either uncertainly or purposeful multiple meanings.

Originalists reject the influence of other documents on the Constitution, such as the Declaration of Independence or the Articles of Confederation. But the Constitution’s Preamble reminds us that the effort to form “a more perfect Union” is ongoing and started before the Constitution.

The Declaration contains substantive content (unalienable rights, just powers, consent,) together with identification of procedures such as alteration or abolishment of government that is thoroughly consistent with originalism’s underlying premise of limited government. As for the Articles of Confederation, the fact that it was replaced almost totally by the Constitution does not minimize the impact that the Articles had — even if overwhelmingly negative — on the subsequent national government. The Constitution added two branches not in the first national government, but it actually left some elements of the legislature intact.

Unfortunately, the delegates at the Constitutional Convention of 1787 failed to anticipate changes which occurred subsequently to the document’s ratification, revisions which became accepted, legitimate parts of the American political system, like political parties. Once parties were formed and elections were based on those labels, the team-ticket concept necessitated separate designation of president and vice president, an improvement reflected in the 12th Amendment.

Too, the 25th Amendment permitted filling of a vacant vice presidential post left empty for nearly a quarter of U.S. history.

Regarding the Constitution as adaptable to the times is neither a violation of the framers’ intentions nor an inherently liberal position. Rather, this view acknowledges the growing complexity of issues faced by contemporary government and the need to confront those problems. Focusing on the flexibility of the Constitution across time means that we will be able to successfully alleviate a crisis or prevent a future one.

Modern-day originalists advocate an understanding of the Constitution which exalts executive authority and minimizes that of the courts. But in placing the Constitution in a straitjacket, adherents to this doctrine actually undercut presidential power. For example, the president’s power to veto bills is an integral part of the legislative process.

Yet, according to a narrow reading of the veto provision within Article I, the president should only wield this tool when there are legal objections to bills instead of more broad policy objections. Luckily for American presidents, that restrictive interpretation of executive authority waned after the American Civil War.

Contemporary originalists are most upset with what they regard as an imbalance of power in the hands of federal courts. It is ironic that the power which made the judiciary equal with the other branches — judicial review — was established through a ruling which actually rejected adding authority to the Supreme Court which it did not already possess.

Starting with disagreement over rulings which set precedent, opponents to a living Constitution in Congress have taken the step of delaying judicial appointments to all federal courts, pressuring federal judges to revise opinions, and threatening removal of judges whose decisions they object to.

If the originalists and their apologists would ever get their heads out of the sand, they would realize that the present period of American history has favored states’ rights over national rights in many instances. The exception is in our enlightened understanding of equal rights for all, by which federal, uniform standards must supersede state requirements.

The doctrine of originalism is nothing new. What seems relatively recent is the method by which some trumpet its benefits over all other ways to comprehend the Constitution. In reality, differing ways to interpret the language and meaning of the document have always been with us and have been manifested in the philosophies of jurists and views constitutional scholars.

EDITOR’S NOTE: Dr. Samuel B. Hoff is George Washington Distinguished Professor of History and Political Science and Law Studies director at Delaware State University. Dr. Hoff will debate Lee Strang, John W. Stoepler Professor of Law and Values at the University of Toledo Law School, on the topic of Constitutional Originalism at DSU on Wednesday, Sept. 28, from 7:30 to 9 p.m. at Bank of America Lecture Hall (113). The event is open and free to the public. For details, contact Dr. Hoff at or call 857-6633.

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