From Roe v Wade to weapons, the US supreme court thinks we should follow the original meaning of the founding fathers as closely as possible. I decided to give it a try. Now hold my musket …
I recently discovered that if you walk around New York City while carrying a colonial-era musket, you get a lot of questions.
Questions aside, a musket can come in handy. When I arrive at my local coffee shop at the same time as another customer, he tells me: “You go first. I’m not arguing with someone holding that thing.”
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Why am I carrying around a 1795 firearm? Well, it’s because I’m deep into Project Constitution. I’ve pledged to live by the US constitution as strictly and literally as possible. I want to see what it’s like to be the ultimate originalist.
I got the idea after the US supreme court’s latest controversial term. As you might know, it’s the most conservative court in decades. It overturned Roe v Wade, saying that the constitution does not guarantee a right to abortion. It bolstered gun rights and took power away from the Environmental Protection Agency.
This is, in large part, because several justices adhere to a philosophy called originalism in some form or another. The main gist of originalism is that we should follow the original meaning of the constitution as it was understood when it was first implemented in 1789 (or, if the decision involves one of the constitution’s amendments, whenever that was ratified).
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To be fair, there are many versions of originalism, and no originalist would go as far as I do. Originalists argue that the constitution doesn’t require you to opt for muskets over modern guns. Instead, a good originalist takes the centuries-old principles of the constitution and applies them to the current day, using history and tradition as a guide. So the right to privacy, originally meant to stop the constable banging on your door, now applies to your smartphone.
Fair enough. But it seems to me – and many other observers – that the court’s originalists can be pretty stingy when it comes to updating, especially if it involves women’s rights, gay rights or environmental regulations. “One of the dangers of originalism is that the people who practise it can easily get too frozen in history, and I think that’s what some members of the court did this term, ” says Glenn Smith, a constitutional law professor at California Western School of Law. “They’ve let their hidebound sense of history overcome a reasonable originalist approach.”
More than that, originalism can be wildly inconsistent. Sometimes a certain constitutional right is interpreted as narrowly as possible – Clarence Thomas, the most hardcore originalist on the current supreme court, doesn’t believe the “liberty” recognised in the 14th amendment can expand to include gay marriage, since the drafters never conceived of gay marriage. Other times, a right can be stretched to the breaking point. Most originalists say the “right to bear arms” covers muskets as well as AR-15 semi-automatic rifles, even though they are arguably vastly different.
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So what if I try to be consistent? What if I always apply the narrowest interpretation, avoiding the hubris of assuming I know what the country’s founding fathers would have thought? What if I adhere to the strictest version of what was written in 1789 – or, in the case of the later amendments, what was written in 1791 or the 1870s? After all, I want to be prepared in case originalism gets even more extreme.
“My Month of Living Constitutionally” led me on a weird, enlightening and often deeply awkward journey. I handed out pamphlets, I fetched my own water, I annoyed my wife.
As a journalist, I’ve always been grateful to the founding fathers for the right to free speech. But I’ve learned the 18th-century idea of free speech was startlingly different from today’s – both in how we communicate and in what is allowed.
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First, there’s the method I use to express free speech: Twitter. Fortunately for the founding fathers, theirs was a world of paper and ink. It seems to me Twitter is like the AR-15 of speech. It’s another animal altogether. To be safe, I decide to stick to the 18th-century version of Twitter: pamphlets.
I order a quill pen and parchment paper, and scratch out a dozen analogue “tweets”, one on each piece of yellowed paper.
I go to midtown Manhattan to hand out my mini-pamphlets. It’s harder than I thought. Most people skilfully avoid my gaze, looking at the pavement, the skyline, anywhere but my face.
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Finally, I approach a woman waiting for the light to turn green and read her my tweet out loud: “I find it egotistical that we capitalize the word ‘I’ but not ‘he’ or ‘she’ or ‘they’.”
As mixed as the reaction is, it still feels better than the Twitter cesspool. Just seeing people face to face has a healthy effect.
Now I should mention one other thing: to get fully into the founding fathers’ mindset I was wearing an Alexander Hamilton costume. This is not constitutionally mandated. But I’ve found that there are advantages to dressing the part. The outer often affects the inner. With my tricorn hat, I somehow felt more dignified (even though I was mistaken for both a pirate and Napoleon – but, oddly, not Hamilton).
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Back in constitutional times, there was another big first amendment difference: the content of speech was much more restricted. “Governmental limitations of expressive freedom were commonplace, ” law professor Jud Campbell wrote in the Yale Law Journal in 2017. “Blasphemy and profane swearing, for instance, were thought to be harmful to society and were thus subject to governmental regulation.”
This will be fun, I think. I get to be a puritanical censor to my kids and blame it on the constitution
It wasn’t quite Stalin’s Russia, but it wasn’t a free-for-all. You could be arrested for insulting God or trashing the president. What’s more, according to influential originalist judge Robert Bork, the first amendment only referred to “prior restraint”, meaning that the government couldn’t stop you from buying a printing press. But it could punish you afterwards for what you published.
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This will be fun, I think. I get to be a puritanical censor to my kids and blame it on the constitution. When my son drops his iPhone and says: “Goddammit!” I reply: “That is unprotected speech. Say ‘Gosh darn it!’”
I reply to people calling President Biden or Republican senator Lindsey Graham traitors. “You realise your seditious comments are not protected by the first amendment, at least as it was conceived of by the founders, right? You could be prosecuted if this were the 1790s. Please remove.”
Nor shall any State … deny to any person within its jurisdiction the equal protection of the laws – Amendment 14 (1868)
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The 14th amendment, which guarantees equal protection, is beloved by liberals, who believe it extends to gay rights and women’s rights, among others. Most liberals adhere to a philosophy called the living constitution – the idea that rights and meanings in the constitution evolve to fit the times.
Uber-originalists have a much narrower view. The 14th amendment was ratified after the civil war, in 1868, and should therefore only apply to the rights as understood in 1868. It was passed to guarantee rights to Black men, recently freed from slavery. Antonin Scalia, the famously conservative justice who served until his death in 2016, argued that the constitution didn’t say anything about gender-based discrimination.
For instance, just five years after the ratification of the 14th amendment, the supreme court upheld Illinois’ decision to deny a law licence to a woman based on her gender. I email the lawyer who works with my book publisher.
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Likewise, in 1868 married women in many states couldn’t sign contracts. My wife Julie is president of an events business, and prepares and signs several contracts a day.
I tell her that, from the point of view of the constitution’s drafters, this activity isn’t protected. I might have to take over.
“Great!” she says, moving from her desk to the couch and picking up a magazine. “I’ll be over here if you have questions.”
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Thus commence several hours of me trying to navigate confusing and irritating paperwork. I have to ask Julie so many questions about cancellation policies and pricing that she eventually fires me.
In addition to sexism, I have to address racism. The original 1789 constitution contained notoriously racist parts that slave-holding states insisted be included. For instance, enslaved Black people only counted as three-fifths of a person for the purposes of calculating congressional representation.
But of course that doesn’t mean the 14th amendment’s promise of “equal protection” immediately got rid of constitutionally permitted racism. For instance, Black men could vote, but in many states they could not marry a white woman.
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‘The bad news, I tell my son, is no electronics. The good news: I got you this cup and ball.’ Photograph: Reed Young/The Guardian
As legal scholar Elie Mystal writes in Allow Me to Retort: A Black Guy’s Guide to the Constitution: “The people who ratified the 14th amendment hated Black
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