In my last article, Historical Seriousness and the Bill of Rights pt. 2, I explained the problem of selective historical reliance with a focus on Citizens United v. FEC. Here, I wish to finish that analysis.
As mentioned before, Justice Stevens presents two major historical arguments in his dissent, with the first one being the state corporate laws during the 1790s and the second being the dislike of the Framers for the corporations. I have already pointed out the problems with the use of state laws as a tool for constitutional interpretation. Let’s now focus on the second argument.
The dissent cites compelling evidence that some of the Framers were not particularly fund of the role of corporations in the society, and this, at least to the dissenters, mean that corporations were not intended to enjoy the same First Amendment protection of speech as natural persons.
Here, I shall present a problem with this argument that despite its trivial nature seems to be forgotten in many cases.
In a sensible jurisprudence, there must be some recognition for the fact that the Framers of the 1780s and the early 1790s are different from the Framers of the late 1790s.
In the 1780s and the early 1790s, the Founding Fathers were mostly engaged in drafting, explaining, and seeking the proposed Constitution and the Bill of Rights. These texts are arguably documents of political philosophy that aim at explaining a new system of government that would otherwise be hard to grasp. It is therefore reasonable and even necessary to seek aid from the writings of that period as legitimate guides for constitutional interpretation.
However, the political philosophers of the drafting era became the politicians of the next era. Founding Fathers ended up in opposite political parties and sought different agendas in domestic and foreign issues. Though it is easy to sympathize with diversity in policy views, it is ironical to realize that even in cases and controversies that arose from the Constitution they ended up on opposite sides.
As an example, in the founding era the word “necessary” of the Sweeping Clause most likely meant the same thing to both Hamilton and Madison. However, in the controversies arising form the establishment of the Bank of the United Sates, the word “necessary” turned out resembling two very different concepts to the two Framers.
Interestingly, in deciding the fate of the bank, the Justices of the Supreme Court neither cited Madison nor Hamilton, since the reading of the Framers in that political setting was irreconcilable with the task of non-partisan decision-making. Instead, Chief Justice Marshall decided to look more closely at the scope of the reach of the judicial power in giving meaning to the Sweeping Clause.
We can therefore see that even though Chief Justice Marshall ended up agreeing with Hamilton, he never actually stated that the decision is reached through an elaboration on the discourses among the Framers after drafting the Constitution.
In short, it is fair to say that the Alexander Hamilton of the founding era is a political theorist, while the Hamilton of the Washington administration is a politician. Same holds for Madison, and the rest of the crew. These politicians clearly made some policy arguments during and after their time as officers. If those policy arguments were good, they would get passed into the law. Otherwise, they wouldn’t suddenly become the meaning of the Constitution, simply because a Founding Father said so. For a coherent reading of the Constitution, the policy arguments shouldn’t be mistaken for the earlier explanatory texts such as the Federalist Papers.
All this goes to say that in using history as a guide, we cannot simply quote any statement made by a Framer during his life, but rather the texts that aim at explaining a part of the Constitution in a non-partisan manner.
Justice Stevens quotes Jefferson in saying that he wishes to “crush” the corporations in a letter written by him in 1816. The question is: what significance does this have? Suppose that Citizens United was brought before the court in 1820s. Is it possible to imagine that Chief Justice Marshall would have cited the same statement by Jefferson without getting mocked by the entire community of judges and Founding Fathers? I don’t think so.
Here is a small principle that I hope we could agree upon: the Constitution did not change its meaning ever day that the Framers experienced different feelings on various subjects. If it did, I imagine crystal spheres would be of more help to judges than law schools.