« It’s the Kennedy Court
Mike Rappaport
| Main | Michael Perry: Obergefell v. Hodges: An Imagined Opinion, Concurring in the Judgment
Michael Ramsey »


George Will Turns James Madison's Words Upside Down and Inside Out and Backwards Too
Andrew Hyman

In a strange effort to extract from James Madison the notion that the Constitution means whatever five judges --- or modern society --- currently say its words now mean, George Will writes this:

In 1824, in retirement 37 years after serving as the Constitutional Convention’s prime mover, James Madison, 73, noted that the 1787 “language of our Constitution is already undergoing interpretations unknown to its founders.” He knew that the purport of the text would evolve “with the changeable meaning of the words composing it.”

Actually, Madison meant the exact opposite.  Here is the full context, from his letter to Henry Lee (dated June 25, 1824):

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation.  In that sense alone it is the legitimate Constitution.  And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.  If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shapes and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis in the code of law if all its ancient phraseology were to be taken in its modern sense.  And that the language of our Constitution is already undergoing interpretations unknown to its founders, will I believe appear to all unbiased Enquirers into the history of its origin and adoption.  Not to look farther for an example, take the word ‘consolidate’ in the Address of the Convention prefixed to the Constitution.  It there and then meant to give strength and solidity to the Union of States.  In its current & controversial application it means a destruction of the States, by transfusing their powers into the government of the Union.

It is obvious that Madison meant the opposite of what George Will attributed to him.  Moreover, Will argues that “No one today thinks that branding and ear cropping, which were punishments practiced when the Eighth Amendment was ratified, are today compatible with this amendment.”  That may be true, but the present consensus as to the cruelty of branding and ear cropping are entirely consistent with the definition of “cruelty” that prevailed in 1791.

Let’s see how the most popular English lexicographer of the eighteenth century defined the word “cruel.”  In 1773, Samuel Johnson defined that word to mean “[p]leased with hurting others; inhuman; hard-hearted; void of pity; wanting compassion; savage; barbarous; unrelenting.”  Johnson did not suggest that inhumanity, hard-heartedness, and the rest must be evaluated in England as of 1773, or in England as of the date when the word “cruel” was first used there, or that society’s view about what is inhuman or hard-hearted cannot change.  Surely he understood that these things do change, even while the definitions may remain the same.  Johnson’s definition of  “cruel” is perfectly consistent with the notion that branding and ear-cropping are cruel from today's perspective, though not cruel from the perspective of 1773.  The sense in which the Eighth Amendment was accepted and ratified by the nation presumed Johnson’s definition, but did not presume that inhumanity or hard-heartedness would have to be evaluated with reference to sentiments or conditions prevailing in England as of 1773.  That is my opinion (perhaps Justice Scalia or Justice Thomas have a different view); the framers of the Constitution could have easily written about “punishments that were considered cruel and unusual at common law” or "the cruel and unusual punishments" but chose not to do so. Contra George Will, the definition of the word “cruel,” and the sense in which that word was used in the Eighth Amendment, have not changed one iota since 1791; nor has the original meaning of the word "unusual," which means "unusual" as of now, in view of the past.  Of course, if a particular punishment is alluded to elsewhere in the Constitution as being acceptable, then application of the Eighth Amendment needs to be modified accordingly; and, the Excessive Fines Clause also needs to be considered so that it does not become superfluous in view of an overly expansive interpretation of the Punishments Clause.  All of this allows courts today to hold that branding and ear cropping are constitutionally forbidden.

My main objection to the same sex marriage decision (Obergefell) is that the meaning of the words and phrases in the Equal Protection Clause and the Due Process Clause have been given a very different sense and very different definitions from the ones that were intended in 1868 when they were approved. Courts today are obligated by oath to use the definitions and senses that were intended when the Constitution was written.  “In that sense alone it is the legitimate Constitution.”  The Due Process Clause simply requires all of the proceedings that are owed according to the law of the land, including whatever validly enacted state statutes may be on the books now.  The Equal Protection Clause simply guarantees people the equality described in the statutes of his or her state and nation, including whatever necessary and proper acts of Congress may be in force now. That is all these two clauses clearly meant in 1868, and therefore that is all they should mean now.  And, as Kurt Lash has persuasively argued, the Privileges or Immunities Cause does not clearly mean any more than that rights now constitutionally applicable against Congress also apply against the states.  This simple timeless content in the second sentence of the Fourteenth Amendment is now almost completely unrecognizable in the jurisprudence of the U.S. Supreme Court, and every new innovation and usurpation has had one common theme: increased judicial power, discretion, and politicization.

By the way, Matthew Franck also has some reactions to this column by George Will, over at NRO Bench Memos.