by Tom Van Dyke
Historians have their partisan points of view, just like normal people. You gotta vote for somebody. But Joseph J. Ellis beclowns his reputation bigtime in a recent WaPo op-ed, taking a Jefferson quote out of context for nefarious purposes, and even worse, completely misreading Madison and "originalism" in a predictable attack on Supreme Court justices he predictably doesn't like.
Now, it's not like normal people on both sides of the Great Partisan Divide don't bend history toward their druthers and try to enlist the Founders for their cause---it's de rigeur these days, and that's fine. But Ellis is largely known as an accredited historian when dealing with other than current issues.
And sure, as a gentleman of the left, he was entitled to stretch a thin point in making his preferred candidate Barack Obama into a sort of Founding Father. His transformation of the Tea Party movement into the Whiskey Rebellion was even more banal and baseless. But now Dr. Ellis has simply committed scholarly malpractice.
Ellis quote-mines Jefferson, who not incidentally, was not a framer of the Constitution:
"Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did beyond amendment. . . . Let us follow no such examples, nor weakly believe that one generation is not as capable of taking care of itself, and of ordering its own affairs . . . Each generation is as independent of the one preceding, as that was of all which had gone before."
He was telling us, in his own lyrical way, that we are on our own. Jefferson would vote against any nominee who claimed merely to be an umpire calling balls and strikes in a strike zone already determined by the Founders.
The scholarly problem here is that Jefferson was writing about Virginia meeting to discuss amending its 1776 state constitution, whose flaws Jefferson had opposed for decades. [Letter to Kercheval, 1816.]
The context has zip, nada, zero to do with "judicial review." The subject, as the reader can see for himself, is the legislative and amendment processes. [The US Constitution itself is amendable via Article V.] Invoking Jefferson here against the Supreme Court is simply a non sequitur.
Ellis goes on to invoke Madison's apparent evolution from his centralist Virginia Plan to a lover of states' rights and federalism. If it's Madison's credibility Ellis wishes to attack, I leave the rebuttal on that point to the equally accredited and far more judicious historian Gordon S. Wood.
Regardless, Ellis gets completely out of his depth in a patent and blatant misunderstanding of contemporary jurisprudence. Ellis attacks the judicial philosophy of those SC justices as "original intent," but that's a complete misnomer. Their philosophy is "textualism" and/or "original meaning," exactly as Madison himself wrote:
"As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character. However desirable it be that they should be preserved as a gratification to the laudable curiosity felt by every people to trace the origin and progress of their political Institutions, & as a source perhaps of some lights on the Science of Govt. the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the authority which it possesses."
and to that, let's add Jefferson himself, since although he's not as an authoritative witness as Madison, Ellis seems to prefer him:
“On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.”
There's more I could write contra Prof. Ellis, but it's the custom here at the American Creation blog to keep the partisanship at arm's length [partisanship fouls up historical inquiry, as we've seen here]. The predictable partisan battle can be found in the WaPo comments section itself. I'll restrict myself to Prof. Ellis' formal errors and the rebuttals from the Founders themselves.
But yes, this one made me angry. Ellis builds his case on heated partisan rhetoric and a single out-of-context Jefferson quote. As he is a Jefferson biographer himself, there's no excuse for this.
What would Jefferson have said about the other side of today's Supreme Court, which Ellis clearly favors? Oh wait, Jefferson his ownself already did did:
"Time and changes in the condition and constitution of society may require occasional and corresponding modifications. One single object, if your provision attains it, will entitle you to the endless gratitude of society; that of restraining judges from usurping legislation.
And with no body of men is this restraint more wanting than with the judges of what is commonly called our General Government, but what I call our foreign department. They are practising on the Constitution by inferences, analogies, and sophisms, as they would on an ordinary law. They do not seem aware that it is not even a constitution, formed by a single authority, and subject to a single superintendence and control; but that it is a compact of many independent powers, every single one of which claims an equal right to understand it, and to require its observance.
This member of the government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining, slyly, and without alarm, the foundations of the Constitution, can do what open force would not dare to attempt."---Letter to Livingston, 1825.
If Prof. Ellis wasn't aware of this letter, he's a bad scholar. If he is, he's a dishonest man.
[HTs and acknowledgement of some arguments borrowed from NRO. Source quotes verified by this author.]