At Home with Jefferson, Madison, and Monroe–Dolley Madison Edition. Concluded

James Madison was instrumental in the formation of our Constitution and Bill of Rights, but we are beholden to his wife, Dolley, for another one of his important constitutional contributions. Madison took notes during the Constitutional debates. He attended every session and noted every speech, he claimed, except the most inconsequential. Scholars have relied on Madison’s efforts to understand the flow of Constitutional proposals, counterproposals, and compromises. Madison’s notes have been invaluable for understanding our Constitution, but we should be grateful for Dolley for their publication.

Although Madison was meticulous in taking and keeping the notes, he merely stored them for most of his life. It was only after his Presidency, when he had retired to Montpelier, that he started to put them into publishable form. Dolley aided him in this, but after Madison died, Dolley finished the project.

It was Dolley who got them published. In doing so, she may have been thinking more about her widowed poverty than about future scholars, but she convinced Congress to buy Madison’s constitutional notes, and they were published in 1837, on the fiftieth anniversary of the constitutional debates.

Any law student knows that in that half century before Madison’s notes were published, the Supreme Court handed down major decisions about the Constitution that helped set the path of our country. Many constitutional scholars today urge that the only legitimate way to interpret the Constitution is to enforce what it originally meant. The late publication of Madison’s notes, however, highlights that the early Supreme Court Justices rendered their opinions without a basic source for understanding the original intentions of the framers of the Constitution. If you read those early decisions, you will realize that the Supreme Court was not interpreting the Constitution through an originalist lens. If you read Madison’s notes, you will not find the framers mandating that “originalism” was the proper to way view the Constitution. If you delve further, you will find that “originalism” is largely a late twentieth century invention by a few constitutional scholars and judges. “Originalism” is not supported by the original intentions of the framers and adopters of the Constitution.  Ironic.

At Home with Jefferson, Madison, and Monroe–Dolley Madison Edition. Continued

Dolley Madison lived in an age that knew little about diseases such as cholera and yellow fever, and contagions swept off many, as they did in Dolley’s first family. The young were particularly vulnerable, and it was quite common for only half the children in a family to survive until adulthood. Death was known from an early age as brothers and sisters often died. Grief was common.

Early deaths still happen, of course, but not as frequently, and that made me wonder about the effects on the psyches of those early Americans. I have heard it said today, “She never got over the death of her son.” “He never got over the loss of his little sister.” But back then, the majority of the people experienced such a death. If such an event today affects the psyche of the parent or sibling, didn’t it have similar effects back then? How did such losses affect not only the individuals but a society where they were common? Did the prevalence of early deaths make that society fundamentally different from ours?

Dolley, although she had to suffer the tremendous grief of the early deaths of a child and a husband, did not endure what many other women of her era did—the constant cycle of childbirth and nursing and childhood deaths.  Martha Jefferson was twenty-three when she married Thomas Jefferson. In the next ten years, she had six children. Only two survived more than a few years. Weakened by the frequent childbirths, Martha was dead ten years after she was married.

The younger of Martha Jefferson’s two surviving children, Mary, married and bore three babies, only one of whom survived into adulthood. Weakened by the last childbirth, Mary Jefferson Eppes died when she was but twenty-five.

The other surviving child, Martha Jefferson Randolph, lived until she was 64 and gave birth thirteen times with eleven of the children surviving to adulthood, but the stories of Thomas Jefferson’s wife and their younger daughter were common ones of the times. How did it affect the psyche of the women of the age that they were expected to have large families knowing the probability that they would suffer the heartbreak of a dead infant? And how did it affect them knowing that the frequent childbirths could bring an early end to their own life? How did this psychic weight affect those around them?

(Continued on May 28)

At Home with Jefferson, Madison, and Monroe–Dolley Madison Edition

On our recent visits to the homes of early Virginian presidents, our guides and the exhibits revealed that each of those presidents held views opposing slavery. Although Washington never publicly condemned the institution, in private communications he indicated that he opposed slavery and said that it was morally wrong. Jefferson stated that slavery harmed both the enslaved and the owners, and he proposed gradual emancipation. Madison at the Constitutional Convention advocated an immediate cessation of the importation of slaves. Monroe labeled slavery a “blight.” Even so, each owned slaves and benefited from the institution. On the visits, I wondered again about the conflict between their words and their actions. But on this trip, I also learned more about Dolley Madison and for the first time I considered her intellectual journey.

I had known only that Dolley Madison was married to James Madison and that she was a famous for her social skills. The guide at Montpelier confirmed her ability to draw people out and to get her guests talking with each other even when they were political enemies. The guide also told the spouse and me other things about her that we had not known.

She was born in North Carolina to Quaker parents, Mary and John Payne, Jr., and Dolley was raised a Quaker. The prosperous family moved to a Virginia plantation when Dolley was an infant, but in 1783, when she was fifteen, her father, inspired by Revolutionary War ideals and his Quaker faith, freed all his slaves and moved the family to Philadelphia, where he failed as a merchant. In a short time, the family went from prosperity to penury.

When twenty-two, Dolley married John Todd, a Quaker lawyer in Philadelphia. Two sons quickly followed, but when the youngest boy, William, was three months old a virulent yellow fever epidemic hit Philadelphia. Dolley’s husband and her son died on the same day, and her husband’s mother and father died shortly thereafter. Dolley’s father had died a year before and her mother had moved to Virginia to live with Dolley’s sister. The twenty-five-year-old Dolley, without means of support, was alone in Philadelphia with a young son to support.

Along came James Madison. The federal government was then meeting in Philadelphia, and Madison represented Virginia in the House of Representatives. The story has it that James was introduced to Dolley by Aaron Burr, Madison’s college classmate. Less than a year after her first husband died, Dolley married James Madison, who was seventeen years older than she and had not been married before. Dolley’s young son, Payne (really John Payne), became part of the Madison household, but Dolley and James had no children of their own. This reminded me that George Washington also married a widow who already had had children. George and Martha Washington, like James and Dolley Madison, had no biological children of their own. Clearly Martha Washington and Dolley Madison were fertile so the failure to have children seems to have rested with George and James. I wondered if there was any significance in that fact.

Dolley and James stayed in Philadelphia until, in 1800, the federal government moved to that literal swampland that became the city of Washington. The Madisons lived in that new town until 1817, as James first served as Secretary of State under President Jefferson and then two terms as the country’s fourth President. After his retirement James and Dolley moved fulltime to the Madison family home, Montpelier, a large plantation with many slaves.

Hearing this, I wondered what Dolley truly thought about slavery. Did she think about her various families’ different relationships to slavery? Her father felt so strongly about the institution that he freed his slaves and thereby completely altered his and his family’s life. Without slaves, Dolley’s life must have changed radically from the wealth and comfort offered by a Virginia plantation to the poverty of a failed Philadelphia merchant life. Did she resent what her father had done or had her Quaker faith imbued her with same principles as her father? Did she, too, see slavery as evil and in contradiction to the ideals of the Revolution?

She and her first husband had no slaves, but what was her reaction when she learned that Madison had household slaves in Philadelphia? Or when she realized that her new beau owned hundreds of slaves at Montpelier? Of course, she may not have been in much of a position to object to Madison’s slaveholding, but somehow, as did many others in this era, including Washington, Jefferson, Madison, and Monroe, she must have made an accommodation with that institution.

After James Madison died, Dolley Madison was again in poverty. Part of the reason was her son. Payne never “found” himself, we were told. He never married nor had a sustained career. He flitted from one enterprise to another running up debts, which James Madison paid. As a result, Madison mortgaged Montpelier. After Madison died, Dolley moved back to Washington and had Payne manage the plantation, but he did so disastrously, and Montpelier had to be sold shortly after he took charge.

After hearing Payne’s story of never being married and deeply unhappy, I wondered if he had been gay. I said something to the spouse, and she had had a similar thought. Of course, I have no real knowledge that he was, but if Payne was gay, what was his life like? Would it be surprising that he was deeply unhappy and became an alcoholic?

Dolley not only sold Montpelier, she also sold all but a few of Madison’s slaves whom she took to Washington. Her poverty continued, however, and she periodically sold her household slaves to maintain her comfort. Although she was revered in Washington, abolitionists denounced her for these sales, especially because they happened in Washington, the nation’s capital. How did Dolley feel about these criticisms?

(Continued on May 25)

Originally it was not Originalism (concluded)

I am not suggesting answers to these various questions about the text of the Second Amendment or that Heller’s outcome was wrong, but rather I am claiming that interpreting the Constitution is not as simple as Alito would have us believe. Alito seems to say, “Just read the words and you can understand the right.” I am suggesting, instead, that we remain skeptical when a judge or anyone else states that the other guy’s method of constitutional interpretation is really a disguise for personal preferences, but his method is pure and neutral and keeps out personal predilections. Heller was not decided, in spite of Alito’s implications, without many, many interpretive choices, and perhaps, just perhaps, those choices allowed for personal preference. And maybe, just maybe, practitioners of originalism and its cousin, textualism, are not as innocently disinterested in the outcomes as they pretend to be. (Jack Rakove in his Pulitzer-Prize winning book, Original Meanings: Politics and Ideas in the Making of the Constitution, after giving reasons to doubt originalism as a viable theory of constitutional interpretation states, “On the other hand, I happen to like originalist arguments when the weight of the evidence seems to support the constitutional outcomes I favor—and that may be as good a clue to the appeal of originalism as any other.”)

The Constitution does not allow for a merely mechanistic method of interpretation that insures judicial neutrality and guarantees that personal values of a judge will not enter into judicial decisions. The Constitution itself makes it impossible. That document contains broad or vague words, terms, or phrases, and not all reasonable people will agree on their meaning when applied to a particular circumstance. For example, Congress has the constitutional power “to regulate commerce . . . among the several states . . . “ (what is often called the Interstate Commerce Clause). Under this provision, can Congress regulate commerce between just two states, or does “among” require the involvement of multiple states? Does the term “commerce” require a commercial transaction? For example, if I take a pleasure trip from Brooklyn through New Jersey to Pennsylvania, has there been “commerce” that Congress can regulate? (Did I really just use “pleasure” and “New Jersey” in the same sentence?) Relying on the Interstate Commerce Clause, Congress prohibits the growing of marijuana, but does the power to “regulate” mean the power to “prohibit”? If I grow wheat and consume it myself, I will no doubt buy less grain from the national market for wheat. Can Congress regulate my personal garden because my wheat cultivation affects interstate commerce? The Supreme Court has addressed questions like these many times, and the answers could not have come from a judicial automaton. They could come only from justices exercising judgments, and those judgments may be influenced by personal values.

The Constitution is filled with terms that are even more open-ended than the Commerce Clause. Article I lists specific congressional powers and then goes on to state that Congress has the power to enact laws that are “necessary and proper” for carrying out the enumerated powers. Article II states that the “executive power” is vested in the President. Not all will agree in a particular circumstance as to what is “necessary and proper” or what is an “executive power.” What does “due process” or “equal protection” mean.  And so on; and so on; and so on. The Constitution cannot just be read and mechanistically applied. Constitutional decisions require contemporary interpretations of the words and phrases written centuries ago, and in spite of what some conservatives say, that will always permit personal values to affect the outcome. We can hope that a judge will select a reasonable method for interpreting the Constitution, but no method, including trying to fix its meaning in the amber of 1787 or some other time, will eliminate the opportunity for personal values to affect the outcome. (The distinguished and learned conservative judge Richard Posner has stated, “It is questionable whether there has been anyone in the history of law who could really divorce his jurisprudential views from his personal and political ones. . . . It’s hard to get excited about judicial conduct that violates principles unless it is bringing about results you don’t like.”)

It is noteworthy, however, that one of the earliest Supreme Court pronouncements about how the charter should be interpreted did not proclaim it as a document with an unchanging meaning. Having been present at its creation, Chief Justice John Marshall knew as well as anyone how the framers and adopters wanted the Constitution interpreted. When the Constitution was proposed, he advocated its adoption, and as a delegate to the Virginia convention, he voted in favor of it. When he was on the Supreme Court, Marshall gave his view on how the Constitution should be interpreted. He said it was a document “intended to endure for ages to come, and, consequently, to be adapted to the crises of human affairs.” (Emphasis added.) Constitutional provisions do limit constitutional interpretations, but Marshall recognized that the document has many generalities and interstices that must be refined and filled in by judges. Constitutional meaning was not rigidly fixed in 1787. Rather, that meaning needs to adapt and evolve in light of “the crises of human affairs” if that document is to endure. This really addresses the most fundamental question about our fundamental charter. Is our Constitution only backward looking giving true sovereignty over us to the people of 1787 or did the framers of the Constitution, in the words of the recently retired Justice Anthony Kennedy at his confirmation hearing, “make a covenant with the future”? Are the framers to be admired because they thought they had the answers to whatever might arise, or should they be admired because they were trying to build a nation that would endure for generations?

The originators did not tell us how to interpret the Constitution. Each generation must decide for itself what method or methods are to be used. This generation of conservatives has concocted a method that supposedly gives our fundamental law a meaning fixed from generations ago and supposedly removes a judge’s values from constitutional interpretation. This method is not constitutionally required, and its goals cannot be met. When a judge tells us that he acts merely as an umpire having removed his values from his decisions, he is either delusionally naïve or disingenuous.


Originally it was not Originalism (continued)

Some justices now seem to have morphed originalism even further to lessen a reliance on the old dictionaries. They simply pronounce that the constitutional text controls without ever referring to the original meaning of the words. This approach is evident in Supreme Court Justice Samuel Alito’s opening address to the Federalist Society convention a year or so ago. He paid tribute to the Supreme Court’s 2008 decision of District of Columbia v. Heller guaranteeing an individual’s right to own guns. Alito criticized Justice Breyer’s dissent in that case. Breyer had proposed a balancing test that would weigh self-defense against public safety. Alito stated that if a judge uses such a balancing test, the balance will almost always come to rest where the judge wants it to. Instead, Alito told this conservative group, “Heller, I am sure you know, holds that the Second Amendment actually means what it says.” Breyer was allowing personal values to control the constitutional right. Alito, certain that he knew the “proper” interpretation of the text, claims an unbiased conclusion.

This is not the place to trace the history of the Second Amendment’s interpretation or what it now does or does not mean. Instead, I am struck by the implications of Alito’s statement. He implies that those who would allow some gun control are using Breyer’s balancing test, and that means that they are relying on their own preferences rather than adhering to the Constitution. The conservative majority in Heller, Alito maintains, was not following individual preferences but was simply reading and enforcing the words as written. We in the majority are constitutionally pure (he implies); the dissent is not. (Thought experiment: For how many of the justices in the majority did the outcome in Heller fail to coincide with their individual preferences?)

But how should we interpret the words as written? The Second Amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” I don’t mean to delve into those opening “militia” words about which much has already been written. (Reports state that that first clause is not reproduced in the lobby of the NRA headquarters, only the last part of the provision. Why is that?) Instead, I ask whether there is one, single unambiguous meaning for “the right of the people to keep and bear arms, shall not be infringed”? (I will also ignore the intriguing question of why that last comma exists.)

For Alito the Second Amendment words say unambiguously that individuals have the right to own guns. Period. Full stop. The end. The provision, however, does not expressly grant rights to individuals as Heller held it did. It states that it is a “right of the people.” Wouldn’t the Amendment more clearly have granted an individual right if it had said, “No one’s right to keep and bear arms, shall be infringed”? (Okay, we’ll keep the mysterious comma.) Or perhaps it would have been even more clear if the Second Amendment read: “Every person has the right to own and use firearms.” But it does not make these more unambiguous assertions. Instead, on its face, the provision grants a collective right, not an individual one.

The text also does not grant a right to “own.” Instead it says there is a right to “keep and bear.” Does “keep” mean the same as “own”? Have you never kept something without owning it? And you can keep an object in many places. I might keep a boat at the marina. I keep my tools at work. If a law required me to remove my Winchester or Glock from my home and store it at an armory, wouldn’t I be keeping a gun at the armory?

The Second Amendment right, however, is not just to “keep” guns; it is to keep and bear them. Why the conjunction? The right is not just to keep but to keep and somehow use. “Use,” however, is not the word in the text. Instead, it specifically reads “bear.” That could imply that only those arms are protected when they are “borne,” which seems a narrower word than “use.” And what does it mean to “bear arms”? What did it mean then? What does it mean now? Do we “bear arms” outside the military? When I go deer hunting, do I “bear arms”? (If so, don’t hunting seasons and other hunting restrictions infringe on my right to keep and bear arms?) When I grab the revolver because I think I hear a burglar, do I “bear arms”? Did Aaron Burr and Alexander Hamilton “bear arms” in their famous duel? If I drunkenly point a pistol at my spouse during an argument, am I “bearing arms”? (That last one was a hypothetical; the spouse and I never argue.)

Furthermore, the Amendment does not directly refer to guns. It reads “arms.” The Supreme Court shrugged off an originalist notion that “arms” must be limited to eighteenth century weapons. In this instance, Heller allowed the word “arms” something other than an originalist meaning, but then how are we to decide what arms are now included in the protection? Perhaps the 1828 Webster’s dictionary would provide an approximation of what is meant. If so, “arms” are defined there as “Weapons of offense, or armor for defense and protection of the body.” If a rifle (clearly a weapon of offense) is protected, why not a machine gun, a flamethrower, a cannon, a killer drone, a switchblade, and so on? Aren’t they all “weapons of offense”? Does the text really make it simple to decide what kinds of firepower and killing machines are protected?

Finally, the Second Amendment on its face does not create a right. Instead, it indicates that a right is not to be violated. This, of course, only raises the question, “What was that right?” It is not spelled out in the Constitution, only that the right “to keep and bear arms” shall not be infringed. The scope of that right is not actually in the Constitution’s text, and we must have to look outside the document to find it.

(Concluded August 29)


Originally it was not Originalism (continued)

Original public meaning at a superficial glance is a more promising method of constitutional interpretation than original intention and original understanding. It would have the Supreme Court use the original meaning of the words and phrases in the Constitution to interpret it. This interpretive method has judges jiggling off to ancient dictionaries to find that original meaning, but problems still appear. Perhaps Samuel Johnson’s dictionary, published in 1755, was the most well-known one in the founding era, but Johnson’s definitions were often as prescriptive as descriptive. That is, in the opinionated Johnson’s opinion, he listed what a word should mean, not necessarily what it did mean to all or even most English speakers of the day. And, of course, what really should matter for the United States Constitution is what words meant in America, not England. This is made more difficult because the first relatively complete American dictionary of English was not published until 1828, some four decades after the Constitution was adopted.

Other difficulties with the ancient dictionary approach have also emerged. The Constitution includes the word “emoluments,” but what does that mean? In a lawsuit involving that seldom-considered part of the Constitution, the Justice Department said that it applies to benefits to the President from services rendered by the President in his official capacity. Georgetown Law Professor John Mikhail along with student Genevieve Bentz examined forty regular dictionaries and ten legal dictionaries published from 1604 to 1806 and concluded that 92% of the dictionaries had a broader definition of “emoluments” than what the Justice Department contended. But the remaining ones did have the definition that favored the president. How then should we determine the original meaning of “emoluments”? Do we say it was what the majority of the dictionaries say? Would we come to that same conclusion if the split had been 60-40? Are seventeenth century dictionaries really relevant? And language is always in flux. Was that true for “emoluments”? In a summary of Mikhail’s research, no dictionaries define the word as a benefit, profit, or advantage without linking it to an office, as the Justice Department sought to do, until 1759. But in that dictionary and ones published in 1761 and 1774, the definitions specifically say an “emolument” is a “profit from an office or employ.” Around the time of the Constitution, the meaning of the word might have been narrowing. Indeed, 20% of the dictionaries published between 1759 and 1787 when the Constitution was written had the definition of “emolument” Trump’s Justice Department favors. Can we really be positive that the office-linked definition was not the one being used in the Constitution? It turns out that even using a comprehensive set of dictionaries does not eliminate choices, and when choices must be made, personal values, predilections, and experiences may influence a judge’s selection.

(In a constitutional area where I have researched and published, Justice Antonin Scalia quoted Noah Webster’s dictionary for a definition of “witness” that supported the conclusion he reached [sought?]. That was only one of Webster’s definitions for that word, and some of the other definitions seemed to require a different result from Scalia’s. Scalia did not address the alternative definitions or explain why he had plucked the definition he had. But, while perhaps pretending otherwise, he had made a choice.)

(Continued August 27)


Originally it was not Originalism

With the United States Senate about to consider a nominee to the Supreme Court, we can expect to hear about “originalism,” a philosophy or method for interpreting the Constitution. Conservatives often assert it is the only way to properly interpret the Constitution. The originalism label makes it seem as if this interpretive method was the one our founding fathers mandated. Not so. The Constitution itself does not say how it should be applied to any particular dispute, and those who framed our fundamental charter in the Constitutional Convention and those who adopted it in the states were silent about the “proper” method, if any, for later generations’ constitutional interpretations.

Originalism, instead of being an eighteenth-century doctrine, only emerged in the 1980s when President Ronald Reagan’s Attorney General Edwin Meese started advocating the constitutional jurisprudence of “original intention.” He asserted that a constitutional provision should be interpreted today to reflect what the drafters and adopters of the Constitution intended for it when the charter was adopted. This interpretive method, according to its proponents, gives a fixed meaning to the Constitution, thereby preventing “activist” judges from breathing their changeable, subjective predilections and values into our fundamental law. They believe that judging can and should be essentially a mechanical affair. The judge seeks out the original intention of the constitutional provision at issue, applies that intention to the case’s facts, and an inevitable result will be apparent. Only by applying the constitutional meaning that had been unbendingly established in the eighteenth century, the cant goes, can judges remain neutral.

The jurisprudence of original intention, however, never passed its beta test. Whose intention or purpose? That was left unstated. Perhaps the original originalist meant those who drafted the document, but problems quickly appeared with that idea. The historical record of the drafters’ intention is sketchy. James Madison kept notes of discussions at the Constitutional Convention, but we have no verbatim transcript. Madison could only record a fraction of what was said, and we don’t know what he left out. Furthermore, his notes were not published until decades after the convention and by then many of the framers had died. Others who might have corrected or added to what Madison wrote could not do so. And the framers’ thoughts had often been affected by readings of enlightenment thinkers—Locke, Hume, Montesquieu, and others. How should this affect any conclusions about original intentions?

Besides these difficulties another fundamental issue arose. The Constitution was written in the Constitutional Convention, but it was not adopted there. The draft was sent to state conventions where upwards of two thousand Americans considered and adopted it. We know little about the discussions in most of these conventions other than, usually, the final votes. Even if we would find more records of the state conventions, however, they would likely say little about specific constitutional provisions. The states were only allowed to accept the Constitution as written or to reject it as written, although many states did suggest amendments which led to the Bill of Rights Discussions of many specific provisions that might now be under dispute were unlikely under these terms. If we are to look at original intentions surely it is the intentions of those who adopted it that should count the most, but finding an “intention” out of the collective will of thousands is, to put it politely, a fiction.

With these shortcomings apparent, originalism morphed. Of course, that it morphed says something about the assertion that this is the only proper way to interpret the Constitution, but now the originalism advocates dogmatically asserted we needed to examine not the original intent but the original meaning (sometimes amended to the original public meaning) or the original understanding of the fundamental charter. Original understanding seemingly refers to the impressions, views, and interpretations of the original readers of the Constitution who were part of the adoption process, including not just those who drafted or voted on the document, but also those who wrote about or advocated for rejection or ratification of it. Seeking a common understanding from this broad group is even harder than finding an original intention out of the delegates to the state conventions.

(Continued August 24)