What kind of nation was the United States intended to be, at its founding?
Were we supposed to be an agrarian republic of farmers, with a minimal government with strictly limited powers? Or were we destined to become an industrial and financial power with a strong central government, empowered to collect taxes, regulate commerce, fund health care, and pass whatever other laws were necessary to prosper?
We Americans have been fighting over these questions for 250 years, and we’re no closer to agreement. However, conservatives believe they have a trump card. They assert that they, unlike liberals, are just following the wishes of the men who wrote the Constitution. They argue that a minimal government with guns, patriarchy, and Christian privilege is in line with the founders’ intent, and that modern ideas about the role of government are an aberration.
There are reasons to doubt this.
What did the founders believe?
For instance, we know the founders strongly believed in separating church and state.
At least three of them—Thomas Jefferson, Patrick Henry, and John Marshall—saw no legal or moral concern with abortion, as we know from a 1792 case they were personally involved in. Benjamin Franklin actually published an abortion recipe.
For those who think the government has no business in health care, we also know that President John Adams signed a law similar to the Affordable Care Act in 1798!
To be clear, I’m not making the progressive mirror of the conservative argument—”We should do what the founders wanted, and what they wanted is the same as my politics!”
I’m arguing something else: that it’s both foolish and impossible to use “what the founders wanted” as our guide star, because the founders didn’t all want the same things. They were a contentious group who came together long enough to win independence but fiercely disagreed with each other both before and afterward.
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Some were anti-federalists who believed in weak, decentralized government; some were federalists who favored strong, centralized government. Some were abolitionists who thought slavery should be outlawed; some owned enslaved people and benefited from their labor. Some were populists and some were aristocrats. Some were conventionally religious, and some were skeptics, deists, or freethinkers.
To claim that there was a unified intent behind every word they wrote is simply false. In fact, because the founders disagreed so much, they resorted to strategic ambiguity. They wrote clauses into the Constitution that different sides construed differently, so that everyone would believe their view had prevailed.
Living laws
Here’s a classic example of ambiguous language in the Bill of Rights. The Eighth Amendment forbids “cruel and unusual” punishment. What does this mean?
Clearly, the founders could have written out a list of which punishments were forbidden, if that was all they wanted. Instead, they chose more general language which all but invites the reader to use their own judgment. What counts as cruel and unusual?
This is a principle that’s designed to change with the times. The Constitution doesn’t forbid specific punishments, but cruel punishments in general. As our standards of what constitutes cruelty evolve, so too should the constitutional guarantee. The Supreme Court endorsed this logic in Trop v. Dulles in 1958:
…when the Court was confronted with a punishment of 12 years in irons at hard and painful labor imposed for the crime of falsifying public records, it did not hesitate to declare that the penalty was cruel in its excessiveness and unusual in its character. The Court recognized in that case that the words of the Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.
The standard conservative reply is that the Constitution shouldn’t evolve with the times, but that we should interpret it according to the original meaning of its language. That is, when we read a prohibition on cruel punishment, we should take this to prohibit whatever the founders would have understood by that term, not what we think it means.
There’s nothing in the text to contradict this theory. However, if this is how you interpret the Eighth Amendment, you should also believe that the Second Amendment only confers the right to own a smoothbore musket and not any deadlier modern weapon. Sadly, I know of no conservatives who are consistent about this.
The inkblot
The greatest example of ambiguous language in the Constitution is the Ninth Amendment, which says:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The plain meaning of the Ninth Amendment is that the Bill of Rights isn’t an exhaustive list. The people have additional rights that aren’t written down in the text. The Constitution itself says that the Constitution is incomplete!
The conservative philosophy of originalism holds that we should only interpret laws as the founders would have interpreted them. The Ninth Amendment is a thorn in the side of originalists. In a famous moment, Robert Bork compared it to an inkblot, saying that judges should disregard it because it’s impossible to know what it means.
Just think of what this means, coming from a conservative like Bork. He argues that we should strictly abide by the founders’ intent—except when it comes to this amendment, which we should just ignore because the founders didn’t intend it to communicate anything. This is like a Christian saying we should just ignore one of the Ten Commandments because we’re not sure what God meant by it.
If the argument is that we can’t tell what the founders meant by something they took the time to write and put in the Constitution, that blows a huge hole in originalism as a philosophy! It means there are cases (and not obscure legal corner cases, but in the Bill of Rights, no less!) where it’s impossible to know what the original intent was.
The long argument
Even if taken on its own terms, originalism is self-negating. The Constitution is and must be open for reinterpretation. It will always be subject to debate. It’s not a finalized statement of our rights and responsibilities, but a framework within which that conversation takes place.
Of course, this means that the Constitution can guide us only up to a certain point, but no further. The Eighth Amendment says not to practice cruelty, but doesn’t say what counts as cruel. The Ninth Amendment tells us we have unenumerated rights, but (by definition!) doesn’t say what they actually are. The answers to these questions will always depend on who you ask.
This means that America’s long argument is going to continue. However, we need to drop the pretense that the Constitution has One True Meaning we can discover, or that the founders had one monolithic opinion we can appeal to. Our founding documents aren’t religious scripture, to be worshipped without question, and shouldn’t be treated as such. Whatever the founders’ flaws, they didn’t want us to mindlessly copy them.