“Madison & the Origins of Originalism” and Federalist 84 – 85
As if anticipating contemporary woes about the likelihood of major policy shifts emerging from the legislative process, Madison made this prescient remark: “All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications” (341). He might as well have been describing not just any legislation, but the very process and product of his own labors at the Constitutional Convention of 1787 and the ratification process of 1788, the latter of which had required a series of amendments – against his and Hamilton’s sincere wishes – to be appended to what its designers saw as an eminently complete document. Madison foresaw the situation Rakove describes as a twofold constitution: “the formal document adopted in 1787–88, with its amendments; and the working constitution comprising the body of precedent, habits, understandings, and attitudes that shape how the federal system operates at any moment” (339).
Rakove’s warnings about the dangers of fetishizing “original intent” are well taken in today’s political climate, when the relentless branding of Tea Party this and Tea Party that only serves to obfuscate the complexity and richness of the context from which the Constitution as a document emerged, with Hamilton himself conceding that “no ‘formal proof of the opinions’ of the framers existed” (358). This is important to remember. In fact, Tea Party enthusiasts – or anyone charmed by their breathless rhetoric of a mythical return to Constitutional austerity – can do no better service than to go back and read the Federalist Papers and see for themselves just how vigorously Madison and Hamilton argued against the inclusion of the Bill of Rights and how persuasively their political opponents (bearing names few Americans, Tea Partiers or otherwise, would recognize) argued for it. In the end, I think, Hamilton and Madison relented because they understood the “living document” principle they had made every attempt to circumscribe in their own industrious defenses was not something that could be defeated in words. Only time and experience would tell. And both have told.
“Democracy – and especially American democracy –” Rakove writes at the beginning of his coda, “is an endless present, a polity that occasionally looks forward but rarely looks back (except through mists of nostalgia and myths of origins that little resemble the complexities of the past)” (366). Our most patriotic duty, it seems then, is to guard against political thinking (and unthinking) that purports to simplify the debates of the past, turn our founding documents and their writers into cartoon characters, and in general, render a false idol out of a document that faced revision even before it took effect. We do this by reading carefully and trying our best to escape the natural parochialism of the present.