This is the first of two articles on how to interpret the Constitution, and the implications of these interpretations for the case for keeping Donald Trump off the 2024 presidential ballot. Both the originalist and the modernist interpretations (in my opinion) reach the same conclusion. He is barred from office by the Fourteenth Amendment.
But that doesn’t make these interpretations equally valid.
Let’s go back to what gives the Constitution legal force. It has legal force because it is an agreement.
The Constitution is an agreement between the government and the people. Courts only have authority to enforce it as a kind of contract. And as a contract, the text of the Constitution is just one piece of evidence that tells us what the agreement means. That means that what its authors put down on paper and what they thought at the time is just a part of how we should interpret its meaning.
The text they wrote is important evidence, but not the entire story. And it is only evidence of what people agreed to when the text was laid down, not what the agreement means today.
First of all, there are practical issues about original intent. Whose intent? Let’s look at the presidential oath of office as an example. This is part of the original text of the Constitution as it was delivered by the Constitutional Convention in Philadelphia (May-September 1787).
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
[Article II, Section 2]
Consider that each of the 39 delegates who signed the official document must have had their own interpretation of this paragraph. Which of their meanings is the original meaning? Or, is there a joint meaning, that they all more-or-less agreed on, that we can ascribe to this paragraph? In using the pronoun “he” did they mean that the President can only be a man? (What if we had a different opinion in the twenty-first century?)
And how do we know what that joint meaning is? Meaning doesn’t exist outside the (human, generally) mind. I’m not transferring meaning to you by writing this. You are reading it and creating your own meaning. To do that, you are performing a mental process where you compare what you see with what’s already in your mind and create new concepts, which you then store in your memory.
If I’m lucky enough to have ten people read this, you all will create different meanings.
Words help synchronize meanings. This allows us to agree enough on meanings to get along. If I refer to a tree in our environment, we can agree on which tree, and the meanings of the word “tree” in this context will correspond. You might say it will have some root in reality. But each of us will have our own memories of the tree and associate it with other concepts in our own minds.
All is not hopeless. But we have to be very careful about assigning original meaning to the Constitution based on the people who wrote the text because there are significant practical obstacles to knowing what that is. Unless, of course, you are a mind reader. A historical mind reader.
Originalists are claiming that superpower.
Beyond that, what the delegates meant at the Convention (there were 55 delegates, only 39 signed the final document) doesn’t really mean anything in terms of what the Constitution means as law. As Jack Rokove points out in his book Original Meanings: Politics and Ideas in the Making of the Constitution, 1996, even the people involved didn’t think the meaning at the convention should be the basis of our understanding of the Constitution.
James Madison “argued that questions about the meaning of the Constitution could be answered in light of the debates over ratification, but not by consulting the intentions of the framers at Philadelphia.” Madison argued that the sense of the body of delegates…
…could never be regarded as the oracular guide in expounding the Constitution. As the instrument came from them it was nothing more than the draft of a plan, nothing but a dead letter, until life and validity were breathed into it by the voice of the people, speaking through the several State Conventions.
(Page 17.)
In other words, Madison argues that if you want to know what it means, you don’t go back to the original authors, but rather to the people who gave it force.
This reinforces that the Constitution is an agreement. It did not come out of an official governmental act, like a grant by royalty. It wasn’t an act of Congress. It is an agreement reached by informing the people in many states and having them vote on whether to adopt it. It came into force when a sufficient number of states ratified it.
George Mason believed that state legislatures lacked the authority to ratify the new Constitution because they were creations of the state constitutions. Mason argued that only the people acting through specially called state conventions could authorize a new government. Madison agreed with Mason. He considered the Articles of Confederation to be a mere treaty among the states, but a true constitution could only be adopted by the people themselves. By a vote of nine to one, the delegates voted to submit the Constitution to state ratifying conventions.
[Constitutional Convention (United States) in Wikipedia]
The people give the Constitution its power. Madison and others believed in the theory of popular sovereignty, which was “itself one of the great rallying points of Federalist argument in 1787 and 1788. The Constitution became supreme law not because it was proposed by the Federal Convention of 1787 but because it was ratified by the state conventions of 1787-88.” (Page 18 of Original Meanings.)
So, what gives it legal force today? My claim is that its legal force comes only from the authority of the people of the United States, and that authority can only come from the people of today, because (putting it delicately) the people who wrote it aren’t with us (rest their souls). Great though they may have been, we are the people who give the Constitution the force of supreme law.
That’s not to say its text and the original meaning isn’t important. That’s evidence. But it isn’t the final word. The final word is what the Constitution means to us.
So, when we take on a case like Anderson (Colorado Republican State Central Committee, v. Norma Anderson, et al.) about whether Donald Trump is qualified to be President, we need to consider not just what the authors of the Fourteenth would have thought, but what it means to rule that he’s either eligible or ineligible. What do the American people want the Fourteenth to mean today?
That’s the topic of Part 2 of this series. Tune in tomorrow.
See the introduction to the series here.
See the final article in the series here.