Whose Original Intent?

The political right talks of constitutional originalism, often in claiming the United States is a republic, not a democracy. It’s obvious bullshit, of course. No one who knows history can take seriously most originalist arguments. As with political correctness, radical right-wingers like to project their own historical revisionism onto their opponents. This is the fake nostalgia that is a defining feature of the reactionary mind, built as it is on historical amnesia, public ignorance, and invented traditions; and made possible through underfunded (mis-)education and failed journalism.

Original intent, really? Whose original intent? This oppressive and paternalistic elitism certainly wasn’t the original intent of the Sons of Liberty, the common revolutionaries, and the Anti-Federalist leaders inspired by the Spirit of ’76; not necessarily or entirely representative of the likes of:

Thomas Paine, Ethan Allen, Thomas Young, Levi Preston, St. George Tucker, Benjamin Edes, James Otis Jr., Joseph Warren, John Lamb, William Mackay, Alexander McDougall, Benjamin Rush, William Molineux, Isaac Sears, Haym Solomon, James Swan, Charles Thomson, Marinus Willett, Oliver Wolcott, Benjamin Church, Benjamin Kent, James Swan, Isaiah Thomas, Joseph Allicocke, Timothy Bigelow, John Brown, John Crane, Hercules Mulligan, Samuel Adams, Benedict Arnold, Patrick Henry, John Hancock, Joh, Mathew Phripp, Charles Wilson Peale, William Paca, Samuel Chase, Thomas Chase, Steven Cleverly, Joseph Field, George Trott, Henry Welles, John Scollay, John Rowe, William Phillips, Gabriel Johonnot, John Gill, Solomon Davis, William Cooper, Thomas Crafts, William Ellery, William Williams, Ebenezer Mackintosh, Henry Base, John Dickinson, Benjamin Franklin, Thomas Jefferson, James Madison, James Wilson, and many others.

Also, don’t forget women who were radical and righteous, rebellious and revolutionary, or else simply vocal and opinionated, but sometimes directly involved in the revolutionary war and sometimes taking up arms on the battlefield (Margaret Cochran Corbin, Mary Ludwig Hays, Deborah Sampson/Samson, etc), while others worked as militia, scouts, spies, message carriers, and took action in other ways (Prudence Cummings Wright, Catherine Moore Barry, Patience Wright, Lydia Darragh, Sibyl Ludington, Nanye’hi/Nancy Ward, Sarah “Sally” Townsend, Anna Strong, Agent 355, etc).

And consider certain members of the Daughters of Liberty such as Sarah Bradlee Fulton, Deborah Sampson Gannett, and Elizabeth Nichols Dyar. There also was Annis Boudinot Stockton, a published poet and the only female member of the secretive American Whig Society, and the mother of Julia Stockton Rush and so mother-in-law to the radical Benjamin Rush. She held that the human soul knew no gender. Phillis Wheatley was likewise a poet at the time but, as a slave, far less privileged than the wealthy Stockton. Having written a poem about George Washington in the hope of influencing him to live up to revolutionary ideals, Wheatley had the opportunity to read it to him in person and it was also republished by Thomas Paine.

Then there is Mercy Otis Warren, brother of James Otis and husband of James Warren (both major political figures) and a visitor of George Washington’s military headquarters, who was a more full-throated radical and feminist writer, not to mention an Anti-Federalist and supporter of the French Revolution: “Her analyses of war, her concern for the Native American, and her warnings against an established military and aristocracy based on wealth” (Judith B. Markowitz, “Radical and Feminist: Mercy Otis Warren and the Historiographers”). Another feminist was Judith Sargeant Murray who believed there was no difference in the intellectual abilities of men and women, that girls should get an education equal to that given to boys. Similarly, the feminist playwright Susanna Rowson wrote on education as well, along with having written the first geography textbook, and the most popular best-selling American novel until Harriet Beecher Stowe’s Uncle Tom’s Cabin was published more than a half century later.

Men, women, and individuals of other groups — the point isn’t that it is known exactly what position each of these people would’ve had about every major issue, but one thing that is clear is the disagreement was loud and contentious. The fighting of the revolution, the founding of the country, and the framing of the founding documents was borne out of a clash of diverse views and motivations. Not even all rich, white males of the landed aristocracy and other colonial elites were socially conservative and anti-democratic. We should be talking about original intents, not original intent.

There was always heated debate over American values and principles going back to the colonial era, the debate having been particularly heated in the constitutional convention and having continued ever after — a large reason why the party system developed right from the beginning based on the never resolved conflict between Federalists (pseudo-Federalists) and Anti-Federalists (real Federalists), among other schisms. Opposition to unrepresentative elite rule in London (not to mention unelected elite rule in the British East India Company) was the whole motivation for the American Revolution, something that bothered the colonial elites as much as anyone else. Among the Signers of the (second) Constitution, many were signing under dissent and only with the promise of an Anti-Federalist Bill of Rights that expressed alternate and opposing original intents. The final document was a hodgepodge of clashing and conflicting original intents stitched together like Frankenstein’s monster.

As for the original intent of the pseudo-Federalist framers who won the war of rhetoric and seized power through the coup of an unconstitutional constitutional convention, they exceeded and betrayed their public mandate as the unanimously-passed Articles of Confederation required a unanimity to change it, a requirement that was not met in initially passing the new constitution. Why does the original intent of only one minority faction count? What about the original intent of everyone else? Why don’t we instead heed the original intent of the actual founding documents, the far more democratic Declaration of Independence and Articles of Confederation? Or what about the original intent of the radical and rabblerousing tract Common Sense without which, John Adams argued, there would have been no successful revolution and hence no United States?

As for the United States Constitution, technically the second constitution, the original intent of the right-wing framers who took control of the constitutional convention was reactionary and counter-revolutionary. To that extent, present-day right-wingers are partly correct that the original intent of this narrow group of framers does conform to the authoritarian and social Darwinian aspirations of the present GOP. The fact of the matter is that the country was founded on slavery, plutocracy, violent oppression, and class war. Think about the continuing conflict of Shays’ Rebellion that led this particular elite to push for a constitutional convention.

At the time, there was no majority that agreed upon a lone original intent that was spelled out and isolated from all larger social, political, and historical context — and probably few, if any, had any expectation that there could or should be one original intent to rule them all. As such, what about the original intent behind the influences to the second constitution, such as the division of power in the Iroquois Confederacy or the anti-imperial republicanism of the Basque? And following the pre-revolutionary uprising against the British East India Company, what about the original intent of mistrust that so many founders and framers had toward the corrupting force of large corporate and banking interests, as they articulated in new laws restricting their power?

Original intent was never a specific set of claims conceived of and agreed upon by a consensus of unified leadership but a larger debate that extended and developed over time, shifting within American public debate and public opinion. If you could have asked a thousand Americans before, during, and after the American Revolution what was their original intent, they likely would have given you a thousand answers. The very idea of an original intent would have been contested, maybe dismissed and ridiculed by no small number of early Americans.

Many slaves, some having fought in the Continental Army, believed that revolution promised them the freedom espoused in the Declaration of Independence and, based on that original intent, many would continue to revolt long after the white man’s revolution ended, continuing after the last class war uprisings like the Whiskey Rebellion were put down. In the case of Elizabeth “Mumbet” Freeman, a slave in Massachusetts, she used access to legal representation to win her freedom in court. Other slaves, in taking seriously the ideals of the American Revolution, took freedom into their own hands and sought the direct path of escape. And we can’t forget how the living memory of the revolutionary era inspired many decades of slave revolts in the lead up to the American Civil War, what some call the Second American Revolution. Maybe the original intent took a while to more fully gain traction.

The promise of revolutionary rhetoric also incited feminist fervor, as Abigail Adams warned John Adams in telling him, “Remember the Ladies, and be more generous and favourable to them than your ancestors. Do not put such unlimited power into the hands of the Husbands. Remember all Men would be tyrants if they could. If perticuliar care and attention is not paid to the Laidies we are determined to foment a Rebelion, and will not hold ourselves bound by any Laws in which we have no voice, or Representation.” Still in the revolutionary era, there was the widely read and influential feminist texts by Mary Wollstonecraft, A Vindication of the Rights of Woman (1792). That is a text, by the way, that Annis Boudinot Stockton would read and comment upon, combining criticism and praise.

Considering all of these Americans who made possible the creation of a new country, what about the original intent of those who continued to be oppressed, victimized, and silenced? In ignoring the original intent of the majority of citizens, revolutionaries, and Anti-Federalists (true Federalists); poor white men, women, blacks, and Native Americans; et cetera; and instead in exclusively (exclusionarily) prioritizing the original intent of one authoritarian and imperialistic segment of the plutocracy, today’s Republicans and other varieties of the radical right-wing fringe should, on principle, be openly and honestly advocating for slavery, aristocracy, plutocracy, paternalism, and imperialism while fighting against the basic democratic rights of most of their own supporters and followers, not to mention seeking to end the tyranny of their corporate funders and cronies.

Upon the passing of the second constitution, blacks and most minorities couldn’t vote or run for office. Neither could women or most white men who were poor and landless. Then again, corporations — not conflated with private business ownership at the time — also were left quite powerless in the post-revolutionary period or at least severely limited in scope as being legally limited to organizations that served the public good for short periods (building a bridge, establishing a hospital, etc). This was according to the original intent of one generation having no right to impose upon later generations, which is to say each generation was assumed by many to have their own separate original intents and, in the case of Thomas Jefferson, each generation was expected to have their own new constitutions.

By the way, there is nothing more contrary and alien to constitutional original intent than corporate personhood. Some of the worst founders may have been authoritarian and despotic, but one thing few of them could’ve been accused of was being corporatists. As horrific as was slave-based capitalism, it was not corporate capitalism. Such authoritarian oppression was much more personal and paternalistic, quite unlike the cold and distant corporatocratic political order that has since come to rule our society. Corporations were never intended to be treated as persons with civil rights. Heck, in early America, many actual humans weren’t treated as having legal personhood. The definition of legal personhood had severely limited application in the bad ol’ days, and that has everything to do with why democracy has always struggled to take hold in American society.

In fact, in the immediate aftermath of the constitutional coup, Americans had less voting rights than they had under the British Empire. Only about 3% of the population were represented in this supposedly representative republic that Republicans idealize. Many democratic reforms, including abolition of slavery, ironically happened more quickly in the British Empire than in the former American colonies. It required many generations of Americans fighting for their rights in opposition to an oppressive original intent that we have managed to get to the point of having the pretense of a half-assed democracy, if in reality it’s a banana republic.

Right now, Republicans are seeking to push originalist Amy Coney Barrett into the supreme court, and yet under the original intent of the misogynistic and patriarchal framers no woman would be allowed to vote, much less allowed to be nominated to the supreme court. If Barret is an originalist, she should immediately decline her appointment, step down from power, retire from her professional career, and become a housewife. The political right is being extremely selective about which original intents they praise and which they conveniently ignore or obfuscate. That is to say the entire originalist argument is disingenuous; i.e., bullshit.

The right-wing demagogues and corporatocratic social dominators are being blatantly dishonest in their seeking to seize power and maintain the status quo of a caste system of vast disparities. If they were honest about their intentions of authoritarian elitism and police state oppression, even most conservatives and Republicans wouldn’t support them. Without lies and deception, they could never win any election, no matter how much they control and manipulate our political system and electoral process through the anti-majoritarian constitution, senate, supreme court, gerrymandering, voter purges, dark money, lobbyists, revolving door politics, regulatory capture, etc. A genuine public debate and fair political contest over the legitimacy of such elite rule would end in defeat, if it wasn’t hidden behind false rhetoric of culture wars and stale Cold War propaganda.

Most Americans would not in full understanding agree to authoritarianism that operated out in the open, but that is the whole point of the anti-majoritarian agenda. It doesn’t require majority support and, in fact, must avoid it at all costs. There is no silent majority of Americans who are authoritarian followers demanding to be further silenced by an anti-majoritarian elite. The actual silenced majority is kept ignorant, cynical, and disenfranchised in order to prevent them from realizing the power they possess through their sheer numbers, the power through which they could claim their own freedom of self-governance, the original intent that inspired the revolutionary generation.

Whose original intent? Why should we care about, much less submit to, the desires and demands of our oppressors? Quo warranto. By what right? Besides, what power do the dead have over the freedom of the living? Or rather, what legitimacy does the present generation of self-proclaimed ruling class have to speak on behalf of a past generation of self-proclaimed ruling class, in their moving corpses about like grotesque puppets? Who has the audacity to declare the original intent of those no longer around to speak for themselves? And how can such presumptions take away our right and responsibility to decide for ourselves as a people, to organize and govern as we see fit?

A constitution, as Anti-Federalists and Quakers understood, is the living agreement of a people. There is only one question we must ask ourselves and only we can answer it. What is our intent? What are the hopes that inspire us and the aspirations that drive us, the ideals that sustain us and the visions that guide us? What are we willing to fight and die for as past generations did? We aren’t limited to the intents of our predecessors, but we might learn from their example in how they refused the intents of others over them. To put it in stark terms, do we intend to be enslaved or free?

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The Tyranny of the Minority, from Iowa Caucus to Electoral College
Corey Robin

Even with their acceptance of slavery and a highly restricted franchise, many of the Framers were uneasy about the notion that some people’s votes might count more than others. When one group of delegates proposed that each state, regardless of the size of its population, should have an equal vote in Congress, James Madison denounced the plan as “confessedly unjust,” comparing it to the scheme of “vicious representation in Great Britain.” State-based apportionment, claimed Pennsylvania’s James Wilson, would only reproduce the inequality of Britain’s rotten boroughs, where a nearly depopulated Old Sarum—described at the time as sixty acres without a home—had two representatives in Parliament, while London, with 750,000 to one million residents, had four.

Madison and Wilson lost that debate; the United States Senate is the result. Within a year of the ratification of the Constitution, the 50,000 free residents of Delaware, the least populous state in the nation, had the same number of senators as the 455,000 free residents of Virginia, the most populous state. That makes for a ratio of power of nine to one. Today, according to a recent report by the Roosevelt Institute, that ratio has expanded to sixty-seven to one. Wyoming’s 583,000 residents enjoy as much power in the Senate as the nearly 40 million residents of California. (In the Electoral College, the power ratio is four to one.)

Eighteen percent of the American population—on average, whiter and older than the rest of the population—can elect a majority of the Senate. If those senators are not united in their opposition to a piece of legislation, the filibuster enables an even smaller group of them, representing 10 percent of the population, to block it. Should legislation supported by a vast majority of the American people somehow make it past these hurdles, the Supreme Court, selected by a president representing a minority of the population and approved by senators representing an even smaller minority, can overturn it.

The problem of minority rule, in other words, isn’t Trumpian or temporary; it’s bipartisan and enduring. It cannot be overcome by getting rid of the filibuster or racist gerrymanders—neither of which have any basis in the Constitution—though both of these reforms would help. It’s not an isolated embarrassment of “our democracy,” restricted to newly problematic outliers like the Electoral College and the Iowa caucuses. Minority rule is a keystone of the constitutional order—and arguably, given the constitutional provision that “no state, without its consent, shall be deprived of its equal suffrage in the Senate,” not eliminable, at least not without a huge social upheaval.