Original Intents: Nation’s Founders Had Differing Views on Constitution’s Meaning, Says Rutgers Scholar

By Tom McLaughlin

Gun control. Abortion. Immigration. Education. Supreme Court appointments.

As these and countless other issues are debated this election season, a familiar, underlying question continues to be asked by American scholars and citizens alike: What is the role of the U.S. Constitution in deciding these arguments?

Is the Constitution fluid – a living, breathing document that evolves according to the wants and needs of the American people – or should it be interpreted strictly as the forefathers had intended?

Some may be surprised to learn that even in the country’s infancy, the founding fathers – the very gentlemen who crafted the document and proclaimed it as the supreme law of the land – actually disagreed on its power and limitations, explains Andrew Shankman, an associate professor of history at Rutgers University–Camden.

“By 1791, James Madison and Alexander Hamilton, two of the most vocal figures at the Constitutional Convention, already have deep disagreements about what the Constitution means,” says Shankman, author of the forthcoming book Original Intents: Hamilton, Jefferson, Madison and the American Founding (Oxford University Press).

We check in with the expert on the revolutionary and early national United States, who explains the root causes of this divide and its implications for modern constitutional analysis.

We hear the term “original intent,” which appears in the title of your book. Where does it come from and what does it mean?

“Original intent” means that all you have to do is figure out what the founders meant and then apply it to today. It is most often associated with the late U.S. Supreme Court Justice Antonin Scalia, who was a big proponent of this interpretation of the Constitution.

What was Alexander Hamilton’s position on the scope and purpose of the Constitution and how did it play out in the early days of the Washington administration?

Hamilton argues that the government has implied power to do anything as long as it is not expressly forbidden by the Constitution and the action taken can be plausibly connected to a power the Constitution expressly grants. One of the prime examples of his position is his proposal for a national bank. He argues that the Constitution has two clauses – the Necessary and Proper Clause, and the General Welfare Clause – which actually expand on this power. If you take his position on implied powers, you can connect these clauses to almost anything that is not expressly forbidden.

In the case of the bank, it was the power to lay and collect taxes. Since that was a power expressly granted, since a national bank would make it easier to carry out that power, and since incorporating a bank was not expressly forbidden by the Constitution, Hamilton argued that incorporating a bank was constitutional.

Conversely, what were James Madison and Thomas Jefferson’s views on the matter?

Jefferson and Madison believe that the Constitution is limited in its power and can only do what it explicitly states that it can do. Therefore, their main objection to the bank is that nowhere in the Constitution does it say that the United States has the right to create a corporation. Since that power is not stated in the Constitution, it is unconstitutional. Here you have this document that is completely different in the hands of Hamilton, and Madison and Jefferson.

In your book, you note that Hamilton and Madison both believed that they had the correct understanding of the Constitution and yet both of their views end up leading to what we would consider a fluid Constitution today. So what happened?

In 1791, Madison says that, without a doubt, the bank is unconstitutional. Nonetheless, Hamilton ends up winning the debate and the bank gets a 20-year charter. In 1811, Madison is president and promptly ensures that the bank is not renewed. However, the government creates another bank in 1816, which Madison agrees this time is constitutional.

His argument this time is based on who he believes is the sovereign authority in the nation – the people of the United States. He says that the American people, over the last 20 years, have had an extensive conversation about the bank. It’s now clear to him that the people have come to believe that this bank is constitutional and they want it.

So then what is Madison’s new standard for deciding what is constitutional?

He comes to believe that people can render something constitutional through their sovereign authority. However, this only happens through a long, careful, sober conversation over a period of years in which a consensus forms among the citizenry that something is right and should be done.

So Madison also has the capacity to imagine a living, growing constitution, but it’s one that has to involve, in some sense, a democratic people having a long, clear conversation about what their core values are. He says that conversation has to be long, thoughtful, sober, and learned, and guided by responsible statesmen who know what’s at stake and are educating people about what these basic issues are.

How does this more accurate historical account of the Constitution better serve us today?

Instead of thinking that there was one unified view of the Constitution in 1787 or 1788, we have to be much more aware that there are different ways to interpret the document and be much more respectful regarding how we use it and apply it to contemporary problems.”

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