Jefferson was staunch about the idea that the constitution should be rewritten every 19 years, so this idea of Originalism is conservatism draped in rhetorical clothing.
Founder intention is absolutely unknowable and it's a ridiculous argument.
> the constitution should be rewritten every 19 years
No, he did not. He thought that the government should work on cycles of 19 years, which could include re-evaluating the Constitution, but focused mainly on extension of debts, term limits, governmental ownership of land. The "Jefferson thought we should rewrite the Constitution every 19 years" trope is used to launder disliking a Constitutional provision but having no way around it but to throw the baby out with the bathwater.
If only there was a body of scholarship that we could look at to discern what their intent was.
I'm being glib, but your broader point is right - Jefferson was skeptical of permanency, but other Founders weren't. I also think Jefferson was just wrong. One of the things that needed to be balanced or accounted for was figuring out how to provide a sense of stability, which the Monarchy had done previously. I am super skeptical that the US would have survived as long (or survived the Civil War) if the Constitution went through a re-write every generation. There's no way to have any sort of long term vision in this scenario.
Jefferson was staunch that all laws including the constitution should have expiration dates and be forced to be reauthorized by each generation (which he put at every 19 years) as it would be unethical for one generation to impose thier laws on the next
Originalism says that the constitution must be interpreted as it was meant when the relevant clauses were authored. It doesn't say that it must be preserved exactly as is. In the originalist framework, you rewrite the constitution by amending it, according to the procedures outlined therein - rather than by creative reinterpretation by the courts over time.
> Founder intention is absolutely unknowable and it's a ridiculous argument.
Yeah, if only they left some kind of papers where they described in detail what they intended. For example, with respect to the Helvering v Davis case, which I mentioned, and which decided on what the constitution meant when it talked about General Welfare, wouldn’t it have been great if we had some authors of the constitution explain it like this:
> Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare of the United States," amounts to an unlimited commission to exercise every power, which may be alleged to be necessary for the common defence or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.
> Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare."
> But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural or common, than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.
Alas, founders just dropped by, left us with the constitution, and then disappeared in the puff of smoke. They didn’t write any Federalist Papers, no notes from the constitutional convention survived, and whether the General Welfare clause meant “federal government can do whatever it wants” or exactly the things they took effort to enumerate doesn’t matter, since the constitution would have passed either way, it’s not like the state delegates even cared one way or the other...
More seriously, while I can understand arguments that the constitution of the founders wouldn’t work for America in 20th century, the idea that we cannot know what the founders intended is completely and utterly absurd, because in most cases we know exactly what they intended.
the_watcher|6 years ago
No, he did not. He thought that the government should work on cycles of 19 years, which could include re-evaluating the Constitution, but focused mainly on extension of debts, term limits, governmental ownership of land. The "Jefferson thought we should rewrite the Constitution every 19 years" trope is used to launder disliking a Constitutional provision but having no way around it but to throw the baby out with the bathwater.
EDIT: changed "and has" to "but having"
remarkEon|6 years ago
I'm being glib, but your broader point is right - Jefferson was skeptical of permanency, but other Founders weren't. I also think Jefferson was just wrong. One of the things that needed to be balanced or accounted for was figuring out how to provide a sense of stability, which the Monarchy had done previously. I am super skeptical that the US would have survived as long (or survived the Civil War) if the Constitution went through a re-write every generation. There's no way to have any sort of long term vision in this scenario.
syshum|6 years ago
logfromblammo|6 years ago
int_19h|6 years ago
xyzzyz|6 years ago
Yeah, if only they left some kind of papers where they described in detail what they intended. For example, with respect to the Helvering v Davis case, which I mentioned, and which decided on what the constitution meant when it talked about General Welfare, wouldn’t it have been great if we had some authors of the constitution explain it like this:
> Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare of the United States," amounts to an unlimited commission to exercise every power, which may be alleged to be necessary for the common defence or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.
> Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare."
> But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural or common, than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.
Alas, founders just dropped by, left us with the constitution, and then disappeared in the puff of smoke. They didn’t write any Federalist Papers, no notes from the constitutional convention survived, and whether the General Welfare clause meant “federal government can do whatever it wants” or exactly the things they took effort to enumerate doesn’t matter, since the constitution would have passed either way, it’s not like the state delegates even cared one way or the other...
More seriously, while I can understand arguments that the constitution of the founders wouldn’t work for America in 20th century, the idea that we cannot know what the founders intended is completely and utterly absurd, because in most cases we know exactly what they intended.