A Brief Critique of Originalist Constitutional Histories

The problem for originalists is that there is little truth or historical validity to their argument, which amounts to just a feel-good story of the Constitution’s natural legitimacy.

This past September 17th marked the 230th birthday of the U.S. Constitution. Amidst all the expected celebrations and hoopla that followed, it is worth considering a few important history lessons about the founding document of a nation.

The popular originalist idea is that the Constitution is the product of a historical social contract that binds future generations to obey it, unless they decide to change it through later amendments. There are many criticisms one could make of this position, even if it were true historically. Why should we consider ourselves bound to obey laws that a democratic community enacted for us centuries ago? Or even further, why should I obey law that a modern democratic community enacts for me?

These are tough questions to which legal theorists, notably Oxford’s Joseph Raz, have given complex answers. But none of that is relevant here, since the conservative claim that the Constitution is the product of a historical social contract is a dubious one at best.

The claim that it is a social contract is a popular one among American conservatives, especially originalists like the recently deceased Supreme Court Justice Antonin Scalia. Their position is spelled out concisely by United States Circuit Judge Frank Easterbrook:

“The fundamental theory of political legitimacy in the United States is contractarian. Otherwise a pack of tenured lawyers is changing the deal, reneging on behalf of a society that did not appoint them for that purpose. This is not a controversial proposition. It is sound historically: the Constitution was designed and approved like a contract. It is sound dispositionally: it is the political theory the man in the street supplies when he appeals to the Constitution (or to the legitimacy of the electoral process, even though his candidate lost.”