Private: ‘Original Intent’ Better Thought of as ‘Immaculate Conception,’ Historian Writes

Joseph J. Ellis, renowned historian, offers a tough critique of originalism, the method of constitutional interpretation favored by some conservative jurists.

Ellis, who won a Pulitzer for his book Founding Fathers, writes in a piece for The Washington Post that during the forthcoming confirmation hearings for a new justice to fill the seat of Justice John Paul Stevens, the major weapon used against the nominee will likely be the "claim that Supreme Court justices should interpret the Constitution as it was written, not impose their political or personal convictions on the semi-sacred text. Woe to the nominee who has left a paper trail that deviates from the original intentions of the Founders, or what the hostile Senate interrogator defines those intentions to be."

Ellis continues:

The doctrine of original intent rests on a set of implicit assumptions about the framers as a breed apart, momentarily allowed access to a set of timeless and transcendent truths. You don't have to believe that tongues of fire appeared over their heads during the debates. But the doctrine requires you to believe that the ‘miracle at Philadelphia' was a uniquely omniscient occasion when 55 mere mortals were permitted a glimpse of the eternal verities and then embalmed their insights in the document.

Any professional historian proposing such an interpretation today would be laughed off the stage. That four sitting justices on the Supreme Court - Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito - claim to believe it, or some version of it, is truly strange. We might call it the Immaculate Conception theory of jurisprudence.

For other methods of constitutional interpretation, see the book Keeping Faith with the Constitution, which was published last spring by ACS.

Constitutional Interpretation, Supreme Court