Around this 4th of July, there was much talk about originalism. After the writing and signing of the Declaration of Independence, which was accomplished exactly 246 years ago, the men whom we now call founders spent 13 more years thinking and arguing about how to set up a newly independent nation. That historically unique process of political creation not only established our country, but inspired millions of people across the human world to dream about their own nations, some with long historical traditions, others as yet only imagined. The survival of the United States of America based on that original vision has been an unprecedented historical achievement.
Originalism is the idea that the continued development of the United States must adhere to the political structure enshrined in the Constitution. Through two and half centuries of the most rapid political changes in human history, originalism has preserved the political inventions of the founders: power separated among three dissimilar branches of government; division of legislative authority between many states and one federal government; the protection of unprecedented rights for all citizens against governmental coercion; and the free and regular exercise of voting by citizens as the ultimate authority. No American government or person may legally violate those Constitutional rules.
But many of the founders’ firmest political beliefs, also clearly written into the Constitution, have not survived. The same intellectual and moral progress which brought forth the ideals of the American revolutionaries continued after 1789, progress which eventually challenged some of their original decisions. The two sides in the Civil War argued for contrasting sets of those original ideas, which had become by 1860 irreconcilable: the political structure of the national government versus the social structure of American society. The Southern rebels asserted the primacy of white racial superiority, which was a founding tenet of the Constitution, over the unity of the nation created by the Constitution.
Although the Confederacy was defeated and the Constitution was legally amended by the processes outlined by the founders, the original ideas of white supremacy reigned in the US for another century. The apparent promise of the 14th Amendment of 1868, like the apparent promise of the 19th Amendment of 1920, was overwhelmed by stubborn political adherence to the racist and sexist beliefs upon which the US was founded. All branches of American government, Presidents, Congresses, Supreme Courts, and state legislatures, ignored the wording and ideals that represented human moral progress in favor of the outdated original meanings of the Constitution.
The civil rights movements in our lifetimes on behalf of African Americans, women, Native Americans, and LGBTQ Americans were moral revolutions against the founders’ original intentions. The firsts that have occurred in this young 21st century, the first Black President and Vice President, the first Black female Supreme Court justice, the first Native American Cabinet secretary, show how much further American society must travel before we achieve the human equality that the founders proclaimed only for white men.
We must remain true to the original political structures that the founders invented if we hope to make further progress. That structure has been under attack for the past two years from within the government and from outside, by telephone calls and mob violence. We must rely on the political institutions whose outlines were put in place in 1789 to repel those attacks.
We must also rely on the moral progress which has transformed human society since 1789 to guide our journey toward making those institutions more and more egalitarian, more and more democratic, more and more fair to all.
Originalism as an ideological guide is exactly as useful and as limited as the original visions of the founders themselves. They were revolutionaries, and the revolution must go on.
Steve Hochstadt
Roslindale, MA
July 21, 2022
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