Were the Founding Fathers originalist, this is a question I get more often than most others, along with, “Were did Originalism come from?” or “Which Founder was an Originalist?”. The first thing that needs to be discussed is, what Originalism is. Justice Antonin Scalia describes it here in remarks to the Woodrow Wilson International Center for Scholars in Washington, D.C., on March 14, 2005 (What is Originalism and Original Meaning?). In his remarks Justice Scalia says the following:
Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people.
He does not contend to be a “strict constructionist” and goes on to state, that he does not believe anybody should be. An Originalist is one who believes the meaning of the Law is what it was understood to be by those who adopted it, the people who ratified the provision in question. It is this group of people, whether in the Convention of the States in 1787-1789 on the Constitution, or the various bodies who ratified the 27 Amendments to the Constitution, that granted the permission to give power to government. Only the people and these bodies can cede power, it cannot be arbitrarily taken, and because only they can cede the power it must be understood, what power they in fact meant to cede to government, the Original Meaning of the provision in question. To sum up the basic foundation of an Originalist is, I put this way,
For all Originalist the basic beliefs are that the Constitution is the Authority in which the government operates, and is done by the consent of the People, and the people expect it to be followed. It is a binding contract of conduct between the legitimate power [the people] and the acting power [the government], as in all contracts it defines what the limits of it are.
Now there are several form of Originalism (Originalism and its different types), but the basic premise for all is the same.
What law should be to an Originalist is a function of the Legislature, it is the job of the Courts to determine how it is applied in Justice, what was the intent of Congress in the law, and whether it abides by the confines of the Constitution, to judge WHAT LAW IS, not what the Judge or Justices would wants law to be. To an Originalist, Judges are to act only as “Umpires” to law, not judge if a law is moral or if the law is outdated, they believe morality of law is a function of the Legislature and if it is outdated, that is also the domain of the Legislature to repeal it, not the Judicial Branch to negate it, provided the law abides by the confines of the Constitution.
Now back to the original question, “Were the Founders Originalist?”. This is almost an ironic question, since the Founders were the ones who drafted the Constitution in the first place and are the original point of reference. So in essence they have to be Originalist since they are the original intent, but Originalism has several different perspectives (Originalism and its different types), so each need to be examined individually.
Original Intent
To some Originals type (Original Intent) the Founders are the Original source, they poses the original intent of the Constitution since they are the ones who wrote it. So by this standard on the intent at the origin, the answer would be yes, the Founders are Originalist. What their intents where makes them Originalist, since in Original Intent views, it is the Founders motivation and reason that is the driving factor in the Original Intent perspective. So for Original Intent it is a very easy question to answer in the affirmative.
But what makes this difficult is the fact of varying points of view on many of the parts of the Constitution, there was not a overwhelming consensus on each issue and clause in the Constitution Convention. So for these clauses which were in dispute, whose “intent” is used? Well the answer is quiet clear, the winning view, the view and position which was included in the constitution, not the view which was defeated. Some of the clauses it can be seen fairly easily what the main contention was of the victorious position, even with varying takes the main principle be fairly easily discerned. However on others provisions and clauses, the debate may have been spread over large lengths of the convention, being revisited numerous times, with delegates changing their position along the way. So it may take a more dedicated examination of the records to ascertain what the actual motivation of the clause may be, since it may be tied to other parts of the Constitution.
But in the end, there is a specific intention and motivation for each clause, and it is this intention to which an Originalist of Original Intent deems the primary matter in interpretation. Even though not all of the delegates signed the Constitution, (Founding Fathers) because they disapproved of it, is irrelevant because even some who did not sign it, did honor the Constitution after ratification and with many eventually becoming part of the government it instituted and abided by what it was meant to do.
Original Meaning
For Original Meaning, it does not matter what the delegates intended, what matters to Original Meaning is what did the people think it meant when the granted these powers through ratification, and what did they perceive as the motivation and reason for the provisions.
For this Question, ALL Founders where Originalists and are a portion of the philosophy. They honored what it meant to the people, and through the writings of many including the Federalists and Anti-Federalists. Even with wide differences of opinion of what it meant, it is THAT is was a meaning or understanding, that makes all of the Originalists. So since there were opposing points of view, whose is used? Well just as with Original Intent, it is the view the prevailed, which is FOR ratification, however the opposing view may also be part of Original Meaning, since it was the opposing point of view is what was the driving force in creating the Bill of Rights.
But for the Original Meaning type, meaning is not limited to only the Founders, but also and very importantly includes the Ratification Debates in the State Conventions. The reason is it was THESE bodies whose understanding which was important, it was these bodies who approved of the document, it was these bodies who ceded power to a new government. It is the understanding of what the Constitution meant to them which carries the most weight, since it was these bodies made up of the people, who gave the consent to be governed.
What the Founders meant and those who ratified are not the limiting factors, but also of importance to Original Meaning, is what the motivating factors where for the provisions themselves. What caused the drafters to propose these powers or restriction be placed for or on government. For many provisions there is a historical reason for the Founders including it, whether it came from the time of the Colonies and British oppression or from the failures in the Articles of Confederation. This historical reason would not have been lost, but would have also been known to those ratifying it, making it a valid and important aspect to the motivation and reason, or general understanding of the provision.
For Original Meaning, ALL the Founders, States and People are Originalists by definition, since they are the initial source of reference of understanding of the Constitution. When views oppose each other, it is the victorious view which presents the understanding granting power, but the opposing view is not disregarded, since they were the cause of additional parts to the Constitution later on.
Constructionist
For Constructionist, in the most strict word for word application without allowing implied or inherent power, the answer would be no, none of the Founders were Originalist. The Founders were clear, many of the powers where very specific and could only be applied as is written in the Constitution, such as a Representatives term IS two-years. But in the Convention, it was discovered early on the attempting to describe each specific power in as specific terms as needed,could not be done without writing “volumes”, and then many powers that should belong to government would certainly be missed or overlooked. So it was decided early in the Convention to define “limits” or outer boundaries of many powers, mainly to the Congress since it was the law making body. They enumerated what general power Congress had in context, but not so specific they were prohibitive or broad they were undefined, and also provided the means to enforce it, but each power had with it a motivation or objective. This was done in design to give the Congress the latitude it needed to govern, without making a Constitution so long and complicated it would be forbidding.
And it is this last meaning by the Convention of “limited” power in enumerated clauses which leads directly back to Original Intent and Original Meaning of what that “limit” actually is. Is it the limit the founders intended it to be, or is it the limited the ratifiers understood it to be. Wither way in either perspective, there is a limit to the power, it is just a matters of whose limit is chosen to be taken.
Conclusion
The root of Originalism comes from the Founders, though the term Originalist did not come into being until the 20th Century. Until the mid 20th Century, most justices where inherently Originalist seeking what the Original Intent or Meaning of various clauses where understood to mean (though in several cases this was disregarded for egregious reason), as Justice Oliver Wendell Holmes contends1 that interpreting what was meant by someone who wrote a law was not trying to "get into his mind" because the issue was,
what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used
Three example examples of the founders be understanding that the meaning of the clause in concern can be seen Two during the debates surrounding the National Bank (Jefferson and Hamilton) in regards to the General Welfare and Commerce Clauses, and one regarding subsidizing the Cod industry (Madison) also concerning general welfare.
it is an established rule of construction, where a phrase will bear either of two meanings, to give it that which will allow some meaning to the other parts of the instrument, & not that which would render all the others useless.
The support of government - the support of troops for the common defense - the payment of the public debt, are the true final causes for raising money. The disposition and regulation of it, when raised, are the steps by which it is applied to tile ends for which it was raised, not the ends themselves. Hence, therefore, the money to be raised by taxes, as well as any other personal property, must be supposed to come within the meaning, as they certainly do within the letter, of authority to make all needful rules and regulations concerning the property of the United States. (sic)
If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the Government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions. It is to be remarked that the phrase out of which this doctrine is elaborated, is copied from the old articles of Confederation, where it was always understood as nothing more than a general caption to the specified powers, and it is a fact that it was preferred in the new instrument for that very reason as less liable than any other to misconstruction. Remaining always & most Affecly yours, James Madison (sic)
In regards to the Founders are they Originalist, by the very definition and philosophy of the Originalism, they all are in some manner, since Originalism seeks to go back to the original implementation of the clause during the time of the Founders. But in practicality no they are not, since in Originalism the perceptive that matters is the prevailing one during the origin of the clause, whether the Constitution, the Bill of Rights or any of the other 17 Amendments, and not all Founders were on the prevailing side.
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