An Originalist Argument Against Rigid Originalism Brian Tamanaha James Madison wrote in Federalist 14:



Is it not the glory of the people of America, that whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience?

Madison was not presenting a theory of consitutional interpretation in this passage; rather, he was making a more general observation about the entire constitutional design.



On originalist terms, it is fair [and perhaps required] to ask whether a person who wrote these words would have signed up for a theory of interpretation, like Scalia's original meaning theory, if the result of such a theory would be a "veneration for antiquity...[or] names" that would "overrule the suggestions of [our] own good sense, the knowledge of our situation, and the lessons of [our] own experience"? What would Jefferson--who repeated that the world belongs to the living and not the dead--have thought about a theory of interpretation that directs us to search through two century old texts to divine answers to questions they never conceived of or entertained?



Interestingly--and once again demonstrating that originalist theories can operate at various levels of abstraction--this way of framing the issue shifts the question away from an inquiry into Madison's specific theory of how a written Constitution should be interpreted. Instead, it poses the more general question of whether Madison would have endorsed a particular original meaning theory of interpretation if, in practice (given the reality of the extreme difficulty and rarity of amending the constitution), it would commit our constitutional system to a decision-making process that relies upon old and spotty sources to trump our present knowledge and experience.



As Jack points out in his detailed posts on the subject, no one engaged in this discussion denies that the Constitution is binding law. The dispute is over how the language of that binding text should be interpreted. Relying upon the above quote (and other ideas circulating at the time, which can be found in Bailyn, To Begin the World Anew), my sense is that Madison (to invoke a venerated "name") would be on Jack's side, at least on the core proposition that the Constitution is a legal document for our time and should be interpreted as such.



I'm not a constitional theorist or a historian--so I'll duck now and get out of the way. Older Posts Newer Posts Home