Jill Lepore, a New Yorker staff writer and professor of history at Harvard, began her recent piece on the U.S. Constitution by quoting Benjamin Franklin urging delegates to sign the document. "I confess that there are several parts of this constitution which I do not at present approve," he said. But he hoped that all delegates with reservations "would with me, on this occasion, doubt a little of his own infallibility, and to make manifest our unanimity, put his name to this instrument."
Lepore was contrasting Franklin's open-mindedness with "originalism," the idea judges must only interpret the constitution by determining the Founding Fathers' intent. This is nothing new. In 1916, conservatives blasted Woodrow Wilson's concept of a "living constitution. In 1921 Warren Harding called the constitution "divinely inspired." Then along came the New Deal and, a little later, civil rights legislation to further stir the conservative pot.
The fight goes on. After Ronald Reagan nominated Antonin Scalia to the Supreme Court, Thurgood Marshall was moved to comment: "I do not believe that the meaning of the constitution was forever fixed at the Philadelphia Convention."
Liberal legal scholars are quick to note that the writers of the constitution are long dead. And even if they could be brought to life, they would be nothing like us. Columbia law professor Jamal Greene wonders how rote obedience to views more than 200 years old, in a time of "wildly different racial, ethnic, sexual, and cultural composition," can be justified on democratic grounds."
If the Founding Fathers were revived, they would understand so little and be baffled by so much. Just their views on the place of women and blacks would render them pariahs.
Originalism will march on in the hearts of many conservatives. And remember: For many of them, their stance is no great leap. After all, many are pretty sure the Bible is infallible, too.