The Bill of Rights and Originalism

Abstract

Professor Bradley begins the final installment of the University of Illinois Law Review's year-long tribute to the Bill of Rights by proposing that the first ten Amendments, like the Constitution itself, be interpreted according to the original understanding of their ratifiers. Professor Bradley, though, narrows the scope of the exegetical inquiry to what he proposes is the only sound originalism-plain meaning, historically recovered. Professor Bradley argues that interpreting the Bill of Rights according to the text's plain meaning among persons politically active at the time of drafting avoids both the inflexibility and philosophical deficiencies of ''snapshot" conservative originalism and the inebriating rhetoric of liberal recovery of highly abstract value judgments of the founders.

The Bicentennial of the Bill of Rights is upon us, and I propose we all take a vow of sobriety. I am not talking about staying off the sauce. I am talking about foreswearing intoxicating rhetoric. The following "Litany of the Amended Constitution" by then Justice Brennan is a potent sample of this inebriant. In its "majestic generalities," "the Constitution embodies the aspiration to social justice, brotherhood, and human dignity that brought this nation into being." It "is the lodestar of our aspirations." It is a sublime oration on the dignity of man....

Brennan worshiped at a hallowed shrine. In 1878 William Gladstone uttered what Cornell historian Michael Kammen calls the most commonly quoted observation about the United States Constitution, ever. Gladstone, who was then a Member of Parliament, wrote that as the British Constitution is the most subtle organism which had proceeded from the womb and the long gestation of progressive history, so the American Constitution is, so far as I can see, the most wonderful work ever struck off at a given time by the brain and purpose of man.

Never mind that Gladstone may have cribbed a little here. Forty­ five years earlier, Supreme Court Justice William Johnson said that the Constitution was "the most wonderful instrument ever drawn by the hand of man." At least Gladstone did not say that the Constitution was found in a burning bush, or that it was delivered from heaven on a spirit­ propelled juristic meteor.

Not all the effects of hosannas like these-and of symposia like this one-are stupefying. One good effect may be to (re)kindle in us a desire to retrieve the historical context in which our forefathers worked their impressive, but well short of divine, wonders. What distinguishes their achievements, after all, is that they were not angels but people working in a fixed set of historical circumstances. As Publius taught, if they had been angels, no Constitution or Bill of Rights would have been necessary. Those of us — especially judges — who shape the present meaning of the amended Constitution may then ground our efforts in the document itself, glossed by what its creators thought it meant. If the Bicentennial abets such "originalism," we are better off for it.

Keywords: Constitutional History, First Amendment

JEL Classification: K10