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A Brief Critique of Originalist Constitutional Histories

The problem for originalists is that there is little truth or historical validity to their argument, which amounts to just a feel-good story of the Constitution’s natural legitimacy.

This past September 17th marked the 230th birthday of the U.S. Constitution. Amidst all the expected celebrations and hoopla that followed, it is worth considering a few important history lessons about the founding document of a nation.

The popular originalist idea is that the Constitution is the product of a historical social contract that binds future generations to obey it, unless they decide to change it through later amendments. There are many criticisms one could make of this position, even if it were true historically. Why should we consider ourselves bound to obey laws that a democratic community enacted for us centuries ago? Or even further, why should I obey law that a modern democratic community enacts for me?

These are tough questions to which legal theorists, notably Oxford’s Joseph Raz, have given complex answers. But none of that is relevant here, since the conservative claim that the Constitution is the product of a historical social contract is a dubious one at best.

The claim that it is a social contract is a popular one among American conservatives, especially originalists like the recently deceased Supreme Court Justice Antonin Scalia. Their position is spelled out concisely by United States Circuit Judge Frank Easterbrook:

“The fundamental theory of political legitimacy in the United States is contractarian. Otherwise a pack of tenured lawyers is changing the deal, reneging on behalf of a society that did not appoint them for that purpose. This is not a controversial proposition. It is sound historically: the Constitution was designed and approved like a contract. It is sound dispositionally: it is the political theory the man in the street supplies when he appeals to the Constitution (or to the legitimacy of the electoral process, even though his candidate lost.”

According to conservative originalists like Easterbrook, we should believe that the U.S. Constitution was adopted through a legitimate social contract that inaugurated the legal system as a whole.  This social contract is legitimate because the Founders acted in their capacities as representatives of the people, whose interests and values they were empowered to protect and articulate. Through their debates and decisions, they articulated the interests of the American people and delivered a Constitution that reflected their democratic will. The resultant Constitution, however much the product of compromise and debate, is, therefore, a piece of legitimate law as determined by a democratic process. By a process of Midas-like extension, all subsequent laws which are adopted in accordance with the rules stipulated by the Constitution are also legitimate because they flow from the authority given by the original American people to lawmakers for the rest of time.

What Legitimates a Constitutional Democracy?

The problem for originalists is that there is little truth or historical validity to their argument, which amounts to just a feel-good story of the Constitution’s natural legitimacy. The crude theory of democratic legitimacy only follows if the originalist narrative that there was a social contract signed by genuine representatives of the “people” has any credibility. Unfortunately, I do not think that it does. At the time when the Constitution was adopted, a majority of the population of the former colonies were not allowed to participate in the selection of their representatives, neither prior to deliberation nor after the Constitution itself was adopted.

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Indeed, with most individuals being either women, poor men, slaves or Native Americans, most of the “people” were very far from being granted any political rights whatsoever. Then one also needs to consider that many states had strict property restrictions attached to enfranchisement. These were in place to prevent poor and indigent white men from voting, out of fear that they would use the opportunity to redistribute wealth.  As Harvard’s Alexander Keyssar points out in his seminal The Right To Vote: The Contested History of Democracy in the United States during the years where the constitution was adopted, only “60 to 70 percent of adult white men (and very few others) could vote.” This means that all women, Native Americans, slaves, and many poor white men were denied even this nominal involvement in selecting a representative to speak for them during deliberations on the Constitution. In some of these cases, we might ask how much has really changed given that millions of African American convicts remain unable to vote in elections.

“Those bothered to show concern with this hypocrisy often argued that the rights and interests of these groups were ‘virtually’ represented during the deliberations.”

This is not just a technical point about a bit of old history, since the Constitution was designed to make sure that these groups were continually denied power in the future.  There is abundant evidence to suggest that many of the American Founders were well aware that their so-called belief in liberty for all was at odds with constitutional and other legal policies that restricted the rights of the poor, women, Native Americans, and slaves. Those bothered to show concern with this hypocrisy often argued that the rights and interests of these groups were “virtually” represented during the deliberations.  This meant that the Founders could claim that all the people were indeed represented; some of them by casting a vote for a representative, and others could rest easy knowing that their neighbors, husbands, or owners were looking out for them.

This was merely self-serving reasoning designed to reinforce a deeply unequal society. It is abundantly clear that the rights and interests of these groups were so far from being represented by the Founders that to even claim that seems to be a denial of a history which begot a conflicted present.

Patriotic mythologies aside, the United States was hardly the first democracy to emerge in the world, and it was very far from a democratic egalitarian society at its inception. Instead, it would be more accurate to describe the America of the Founding period as a quasi-liberal polyarchy. Dahl Robert defines polyarchy in Democracy and Its Critics as:

“…a political order distinguished at the most general level by two broad characteristics: Citizenship is extended to a relatively high proportion of adults, and the rights of citizenship include the opportunity to oppose and vote out the highest officials in government. The first characteristic distinguishes polyarchy from more exclusive systems of rule in which, though opposition is permitted, governments and their legal oppositions are restricted to a small group, as was the case in Britain, Belgium, Italy, and other countries before mass suffrage. The second characteristic distinguishes polyarchy from regimes in which, though most adults are citizens, citizenship does not include the right to oppose and vote out the government, as in modern authoritarian regimes.”

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This strikes me as a fair definition of the political system in place at the time of the Founding. Full political rights were granted to some, who in turn elected representatives to go speak for their interests during constitutional debates. However, for all those disenfranchised groups who enjoyed merely “virtual representation,” there is nothing to suggest why they should have felt bound by the decision of the Founders if it is true that consent is the basis for political legitimation.

The U.S. Constitution was hardly the product of a democratic social contract.  Most people in the country had no say in it, and indeed, had no say in any American laws for centuries. It is true, however, that both the country and the Constitution have grown since then, and that previously excluded groups can now participate as full citizens.  But this does not answer the deep questions about why the original text is suddenly cleansed of its shortcomings through an incremental process of redemption. Many of its worst and most regressive features still exist and hold back progress to this day.

Problems for the Future

For instance, there are many features of American democracy, most notably electoral procedures, which were designed to support the rights of small, and oftentimes, slaveholding states. Not coincidentally, these same states continue to wield electoral power that is disproportionate to their population size. They also continue to support policies that enjoy less currency with historically marginalized populations, while condemning those which offer assistance to minorities. This is, of course, not to claim that all marginalized populations share the same interests or political views. But it is meant to undermine the conservative counter-argument that, even if it is true that the Constitution wasn’t enacted in an entirely democratic way, we should still respect it because it now protects the rights of all Americans.

If modern American people were given the opportunity to design things again from scratch, the terms of contract agreed upon might look very different from what they are now if all groups were indeed given an equal chance to determine the form of the Constitution. In either case, it strikes me as odd to say that we should still revere the substance of the Constitution because, according to the rich and well-funded members of the Federalist Society, it does not protect the rights of all.  In many respects, this is just the virtual theory given a new gloss. If democratic consent is foundational to the legitimacy of the Constitution, then it must be given in practice. It cannot be assumed, merely to ease one’s conscience about the uncomfortable truths about the nation’s history. This suggests Americans should have a more radical, and more inclusive, discussion about just what the Constitution should mean and be for the next 230 years.

Matt McManus recently completed his PhD in socio-legal studies at York University. He is currently Professor of Politics and International Relations at TEC De Monterrey. Matt can be reached at garion9@yorku.ca.