What is originalism? It is the idea that “the Constitution should be interpreted in accordance with its original meaning---that is the meaning at the time of its enactment,” according to the Center for the Study of Originalism at the University of San Diego. Originalism sounds like it dates back to our founding but in fact it is a recent concept introduced in 1983. One of the major flaws of originalism is the idea that there was one meaning of the Constitution at the time it was written or amended. But this is clearly false. Rather, the founders had disagreements among themselves over its meaning. John Marshall, the great Chief Justice of the Supreme Court, wrote that “historians can never forget that it is a debate they are interpreting.”
The inability to recognize the extent to which the Founding Fathers argued among themselves is a major flaw in the conservative case for originalism since it is dependent on the theory that people in the 18th century shared a common interpretation of the Constitution. In fact they did not, as one of the earliest debates over the meaning of the Constitution shows. That debate and its later aftermath also shows that James Madison, known as the Father of the Constitution, allowed precedent to change his original understanding of the Constitution.
In December of 1790, Treasury Secretary Alexander Hamilton proposed the creation of the Bank of the United States. Madison took the position that Congress had no power to charter a bank since no such power was enumerated in the Constitution. President Washington was confronted with a major dilemma, with two of his primary advisors now at odds. Hoping to find an answer, he asked Secretary of State Thomas Jefferson and Edmund Randolph, the Attorney General, to provide their opinion on the constitutionality of the bank. Both sided with Madison, in what has become known as the strict constructionist view. Washington then provided Jefferson’s opinion to Hamilton, who put forward what one of his biographers has called “the most brilliant argument for a broad interpretation of the Constitution in American political literature.” Hamilton posited that the necessary and proper clause gave Congress the means to carry out all of its ends, even if the specific power was not listed in the document. Ultimately Congress passed and the president signed the bank bill.
In the aftermath of the War of 1812, Madison changed his mind about the need for a national bank. In a message to Congress in 1815, Madison explained that he no longer opposed a national bank, since “repeated recognitions…of the validity of such an institution, in acts of the legislature, executive, and judicial branches of government” and also by “the general will of the nation” had remove his doubt about whether the bank was constitutional. As the Madisonian scholar Jack Rakove has written, “Madison thus allowed precedents set since 1789 to revise his own original understanding of the Constitution.”
