Monday, September 17, 2012

For Constitution Day

This is in Jefferson's letter to William Smith in 1787, shortly before the famous "tree of liberty" line. I think it has important implications for the way we think about Jefferson's view on the Constitution as well as any other institution formed by past generations:

"The British ministry have so long hired their gazetteers to repeat and model into every form lies about our being in anarchy, that the world has at length believed them, the English nation has believed them, the ministers themselves have come to believe them, & what is more wonderful, we have believed them ourselves. Yet where does this anarchy exist? Where did it ever exist, except in the single instance of Massachusetts? And can history produce an instance of a rebellion so honourably conducted? I say nothing of it’s motives. They were founded in ignorance, not wickedness. God forbid we should ever be 20 years without such a rebellion. The people cannot be all, & always, well informed. The past which is wrong will be discontented in proportion to the importance of the facts they misconceive; if they remain quiet under such misconceptions it is a lethargy, the forerunner of death to the public liberty."

We need to stop pretending - when thinking about the Constitution - that fidelity to the Constitution, original intent, and the idea of a "living document" are opposing ideas.


  1. Come on Daniel. Several of us have pointed out that originalism is not "original intent" and that it is not rooted in the love of Jefferson, but rather that it is rooted in the idea that the political process gives legitimacy to statutes and that to take statutes and make them mean something different than what their text says is to make them into something that was never legitimized by the democratic process. Judges are meant to read and apply the law, not make it up as they go along.

  2. Judges are meant to read and apply the law, not make it up as they go along.


    We only modeled our courts system after, what, 500 years of an English tradition of judges making law and for the first 50 years after the Constitution the Federal Courts and every state were common law courts.

    This "notion" only began to develop out of fear that the Courts would free the slaves

    1. Given that nowadays, just about everyone condemns "judicial activism", whatever may be the dirty history of that philosophy, it is now quasi-universally accepted that judges are meant to interpret the law, not make it. Most people today support that idea because in a democracy, the legitimacy of all laws flows from the democratic process and therefore, it is the democratically-controlled branches that must make the laws, or the laws are not legitimate.


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