When they’re not busy accusing her of being too lenient on pedophiles and too hard on white people, Republicans on the Senate Judiciary Committee holding hearings on Supreme Court nominee Ketanji Brown Jackson purport to worship an originalist judicial philosophy. That means they like judges who promise, all Antonin Scalia-like, to base judicial rulings on what (they prefer to think) the Constitution’s framers intended.
The merit of holding sacred the intentions of 18th century enslavers aside, the right’s professed regard for originalism can be situational, as evidenced, for instance, by the right’s steadfast determination to pretend the phrase “A well regulated Militia, being necessary to the security of a free State” doesn’t exist, or if it does, it doesn’t count.
One problem with the GOP trying to divine the framers’ original intent by consulting an official Federalist Society-approved Ouija board is that Ouija boards don’t actually work. The other problem is even if they did, and Amy Coney Barrett or Neal Gorsuch could reach the Constitution’s framers via the spirit world, which framers would they summon?
After all, the framers strongly disagreed among themselves while drafting the Constitution. And after the Constitution was ratified, they disagreed about it even harder.
James Madison and Alexander Hamilton plotted and planned and connived and even resorted to some trickery to get states to send delegates to what would turn into a constitutional convention in the first place. But by 1791, when the ink was barely dry on the document, erstwhile constitutional cronies Hamilton and Madison had very different visions of what it was they had just done together.
Hamilton, the nation’s first Treasury secretary, was the architect of legislation to create a national bank, which Congress passed.
But wait, no can do, said Madison, representing Virginia in the House of Representatives at the time. There’s nothing in the Constitution that explicitly says Congress can create a bank, so Congress can’t create one, Madison asserted while urging President George Washington to veto the bill.
Oh pish posh, Hamilton said. Article I, Section 8 authorizes Congress to do a whole bunch of stuff, including but not limited to raising taxes and borrowing and printing money. And after it empowered Congress to do all that stuff, Hamilton noted, Section 8 then ends with a paragraph further empowering Congress “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers, and all other Powers vested by this Constitution…”
So ipso facto, ergo, and neener neener, Hamilton continued, if Congress is empowered to raise and borrow and spend money, it’s empowered to create a bank. The authority needn’t be enumerated, because it’s implied. Stick with your precious enumerated powers interpretation, Hamilton warned, and you get a government with no power to govern. Duh.
As you may have noticed over the years, Republicans (at least those who think about these things, like the ones who land themselves on the Senate Judiciary Committee) believe the “enumerated powers” interpretation of the Constitution goes hand-in-hand with the original intent philosophy that has so besotted them. Both concepts reflect the right’s solemn conviction that the framers said what they meant and they meant what they said, dadgummit. (That sentence reads a lot better by the way if you imagine it being read by Iowa GOP Sen. Chuck Grassley). The enumerated powers theory, you may recall, was at the heart of the GOP’s legal challenge against Obamacare.
Meanwhile back in 1791, Washington sided with Hamilton — and the implied powers interpretation of the Constitution — and signed the bank bill over Madison’s objection.
And that squishy embrace of implied powers (though probably not his enslavement of humans) is why George Washington could not win a Republican primary today.
The bank bill is just one of many founding feuds. A lot of people who would go on to become, or were already, American heroes (maybe most famously Patrick Henry) strongly opposed ratification of the Constitution, for a lot of reasons, many of them quite sound. In fact it was their opposition that compelled Madison et al to double dog vow that once the document was ratified one of the first things the new government would do is amend its new Constitution by adding a Bill of Rights.
Placating enslavers to get the Constitution ratified — an unenlightened act even for its time — the holy sacred founders amen also got a bunch of stuff horribly wrong, which would require a second founding in the form of the Civil War and Reconstruction Amendments. (Though a Democratic nominee to the Supreme Court probably shouldn’t bring those up, lest Ted Cruz accuse her of practicing whatever he’s pretending critical race theory is.)
For decades the American right has indiscriminately stuffed the nation’s founding thinkers into a conveniently GOP-friendly box, to be emptied out on any hot-button issue at a moment’s notice. But framers were just humans (white men, specifically), many of them fops in stylishly ridiculous powdered wigs. They could be and on multiple occasions were wrong, unreasonable, self-interested (Madison wrote a lot about that last bit too), and jerks.
But they also had very different views and principles, some profound, others atrocious, some bat guano silly. Regarding them as a monolith enthralled by some magical founding father groupthink, Republicans are doing a disservice to the very people they say they revere. And if it triggers the base and drives it to the polls, Republicans don’t care.
Hugh Jackson is the editor of the Nevada Current which first published this essay.