There’s been an increase in the number of Americans calling themselves constitutionalists in the last several years. They believe the U.S. Constitution should be interpreted using the concept of originalism, wherein the courts should identify the exact intent of the Framers of the Constitution and render legal decisions based solely upon that “original” meaning. But one of the problems with this approach is the difficulty of defining the exact intent of a document that was written more than 220 years ago.
Most of these constitutionalists also hold far-right political views and like to complain about how our country is in trouble because of modern Supreme Court decisions. Some of them go so far as to claim that the court’s recent decisions have violated God’s will. The Church of Jesus Christ of Latter-day Saints, for instance, teaches that the original Constitution was divinely inspired because God was integrally involved in its formulation. Some Mormons have taken this belief much further. The late W. Cleon Skousen founded the National Center for Constitutional Studies (NCCS), a conservative, religious-themed constitutionalist political activist organization. According to the NCCS, the founding of the United States was a divine miracle and we must reject the tyrannical and sinful nature of the modern U.S. federal government. (Before he founded the NCCS Skousen was fired from being the police chief of Salt Lake City for abusing citizens, and was denounced by the city’s mayor as a “little Hitler.” After that he taught a traveling anti-Communist class nationwide in which he liked to denounce the John F. Kennedy administration for being Marxist.) Skousen died in 2006, but he still has many admirers, including Arizona politician Russell Pearce and political commentator Glenn Beck.
Worshipping the Original U.S. Constitution is Irrational
Religious constitutionalists say there are historical documents about the 1787 Constitutional Convention which prove the Constitution was divinely inspired. The “Father of the Constitution” James Madison, for example, wrote to Thomas Jefferson afterwards that it was “impossible to consider the degree of concord which ultimately prevailed as less than a miracle.” George Washington later wrote, “To that superintending Power alone is our retraction from the brink of ruin to be attributed.” But closer examination of quotes from the Framers indicate they believed the true miracle was that all of the young nation’s disparate political interests were able to come to an agreement on a political system that could replace the completely dysfunctional Articles of Confederation, which had served as the nation’s first constitution. Yes, they were very proud of the original Constitution, and realized it was an historic document in the history of the world, but it’s clear they didn’t think it was perfect.
Evidence of this is included in the original Constitution. It consisted of just 7 articles, with one of these, Article 5, describing the process for making constitutional amendments. The first 10 amendments, called the Bill of Rights, had to be promised to the states of Massachusetts, Virginia, and New York to assure their ratification of the original constitution. A perfect original document wouldn’t have needed to be amended. And there are now 27 amendments.
These amendments speak to some of the major deficiencies in the original Constitution. The most important, of course, was the 13th Amendment, which abolished slavery when it was ratified in 1865. (Several of the Constitution’s original Framers were slave owners, including James Madison.) The man who assassinated President Abraham Lincoln in 1865, Confederate terrorist John Wilkes Booth, wrote, “looking upon African slavery from the same stand-point held by the noble framers of our constitution, I for one, have ever considered it one of the greatest blessings (both for themselves and us,) that God has ever bestowed upon a favored nation.”
The 17th Amendment was another important one because it gave voters the ability to directly elect U.S. senators when it was ratified in 1913. And the 19th Amendment, which gave women the right to vote, was ratified in 1920.
Furthermore, these self-proclaimed constitutionalists ignore the bad Supreme Court decisions which resulted from a strict interpretation of the original Constitution, such as the 1857 Dred Scott v. Sandford decision that confirmed the legality of slavery because the Framers of the Constitution viewed blacks as “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.”
Constitutionalists spend a lot of time complaining about the federal courts using the common sense “living document” concept wherein the interpretation of the Constitution includes consideration of modern day realities the original Framers could not have imagined. Any court decision they politically disagree with is given the Orwellian label of “judicial activism,” and the judge that issued it is demonized.
Their favorite topic is the Constitution’s Second Amendment, which states that, “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.” They interpret this to mean that any form of government gun control is unconstitutional, regardless of any other public concerns.
It’s obvious that most constitutionalists are just exploiting the concept of originalism as a vehicle to promote their conservative views, because worshipping the original Constitution and its Framers is irrational.