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Historical Pomposity On Display

Historians claiming to speak to current controversies with the authority of History itself can be at least as pontifically pompous as lawyers claiming to speak with the authority of The Law. A striking case in point is the almost humorously arrogant OpEd in the Washington Post today by Mount Holyoke historian Joseph J. Ellis, author of several widely acclaimed studies of the Revolutionary generation as well as some widely criticized autobiographical fiction.

His OpEd, ?Immaculate Misconception and the Supreme Court,? claims that ?the constitutional doctrine of original intent has always struck most historians of the founding era as rather bizarre.? Prof. Ellis may well be right, since I suspect ?most historians,? after all, are liberal Democrats and thus believe all sorts of things most liberal Democrats believe. But insofar as they do reject original intent, I hope they are more familiar with the doctrine than Prof. Ellis, who rejects a version of it here that is even flimsier than his own non-existent war record.

His first claim is that ?several of the most prominent Founders changed their minds in the ensuing years,? the best example being James Madison, the proverbial ?father of the Constitution? who went from being ?one of the most ardent advocates of federal sovereignty? to, a decade later, the author of the Virginia Resolutions, ?the classic case for state sovereignty over all domestic policy.?

Ellis assumes, I suppose, that the fact that several Founders changed their minds about what the Constitution originally meant means that it didn?t originally mean anything, but it seems to me that that view itself is ?bizarre.? Does a contract or legislation have no orignal meaning because some of those who signed or drafted it later change their minds about what they signed or drafted?

That argument, however, is a paragon of legal reasoning compared to the next rather astounding claim Ellis offers:

The doctrine of original intent rests on a set of implicit assumptions about the framers as a breed apart, momentarily allowed access to a set of timeless and transcendent truths. You don?t have to believe that tongues of fire appeared over their heads during the debates. But the doctrine requires you to believe that the ?miracle at Philadelphia? was a uniquely omniscient occasion when 55 mere mortals were permitted a glimpse of the eternal verities and then embalmed their insights in the document.

Any professional historian proposing such an interpretation today would be laughed off the stage. That four sitting justices on the Supreme Court -- Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito -- claim to believe in it, or some version of it, is truly strange. We might call it the Immaculate Conception theory of jurisprudence.

It?s obvious from this frivolous assertion that Ellis is not familiar with current scholarship on original intent. The theory remains hotly contested in the legal academy, but not even the its most determined critics would describe its most prominent proponents with this almost slanderous caricature. Indeed, anyone who presumed to attribute such ?implicit assumptions? to the work of scholars such as Lawrence Solum or Randy Barnett, not to mention Justices Roberts, Scalia, and Alito, ?would be laughed off the stage? of most law school classrooms, although not, alas, of the Washington Post.

One need not believe, in short, that the Founders were ?uniquely omniscient,? with privileged ?access to a set of timeless and transcendent truths,? in order to believe that the Constitution they wrote and approved meant something to them that is binding on us, unless amended in the proscribed manner. The fact that that meaning is not always clear need not lead inexorably to the view that the Constitution is a blank slate on which we are free to write whatever we choose, which is the clear implication of Ellis?s concluding quote from something Jefferson wrote to a friend in 1816:

Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did beyond amendment. . . . Let us follow no such examples, nor weakly believe that one generation is not as capable of taking care of itself, and of ordering its own affairs . . . Each generation is as independent of the one preceding, as that was of all which had gone before.

According to Ellis, what Jefferson meant is that having a Constitution was meaningless, that it constituted nothing because it required or prohibited nothing. ?He was telling us,? writes Ellis,

in his own lyrical way, that we are on our own. Jefferson would vote against any nominee who claimed merely to be an umpire calling balls and strikes in a strike zone already determined by the Founders.

If Ellis is clueless about the contours of current theories of original intent, he is even more unaware of the irony of his concluding an argument against that doctrine because of its inherent hero-worship of mythical Founders by piously quoting a ?lyrical? statement of one of those very Founders (though one not at the Constitutional Convention) and asserting that how he would vote today settles the matter of what they did then.

Ellis regards it as ?truly strange? that Justices Scalia, Thomas, Roberts, and Alito even attempt to determine what the Founders really meant, but he has no hesitation determining Jefferson?s original intent, and declaring it controlling today.

Full post as published by Discriminations on May 07, 2010 (boomark / email).