Originalism Was Impossible
8 min read
Many scholars and judges today argue that the right way to ascertain the correct meaning of the Constitution’s text is through a search for its “original” meaning. They say it’s not just the right way as a matter of accuracy and respect for democracy’s rules, but it’s also the method that the Constitution itself requires.
In all of this is one practical problem: Originalism was impossible—at least until modern times.
For just about the first third of the Constitution’s lifetime, virtually no lawyer in the United States had any way to investigate the text’s original meaning. The resources to do it either didn’t exist or were completely out of reach. Originalism, whatever its merits, simply couldn’t have been done.
I’ll make the point with Hill v. Kessler, a case litigated in the courts of North Carolina in the late 1860s. In 1866, a woman named Sarah Hill filed a lawsuit against a man named Tobias Kessler in the superior court of Rowan County, in Salisbury, a town of about 2,500 people. Salisbury was home to 10 lawyers at that time; Hill’s attorney, William Bailey, and Kesler’s attorney, James McCorkle, were among them.
The federal constitutional issue in the case arose not from the subject matter of the complaint but from a procedural turn the case took. The rules required a plaintiff to post a bond when filing suit, to cover the defendant’s costs in case the plaintiff lost. Hill did this in 1866, naming someone by the last name of Hodge as her surety to guarantee payment.
In 1868, North Carolina adopted a new constitution that included a so-called homestead law. The provision was an effort to insulate North Carolinians from the worst economic pain of the immediate post–Civil War years. It shielded up to $1,500 in real and personal property from the reach of anyone trying to collect on a debt.
The homestead law got the defendant, Kessler, nervous. Hodge didn’t have $1,500 in assets to his name, so all of his property now appeared to be out of reach. Hill’s bond looked worthless. So Kessler’s lawyers asked the court to require Hill to produce some new security.
Hill said there was no need. Her surety contract with Hodge preceded the 1868 homestead exemption by two years. If the 1868 homestead law protected property retroactively, she argued, it would violate Article I of the United States Constitution, which said no state could enact a law “impairing the obligation of Contracts.”
The trial court agreed with Hill, concluding that the homestead law could not apply to the surety agreement she’d made with Hodge before the homestead law existed. Hodge’s property wasn’t out of reach. Kessler, unconvinced, appealed to the North Carolina Supreme Court.
What did the word impairing in the contracts clause mean in this context? That was the issue over which the Salisbury lawyers Bailey and McCorkle squared off.
Let’s suppose the lawyers had wanted to take an originalist approach. They would have had to build arguments about what the word impairing had meant in 1789. They would have immediately faced a challenge: finding sources to construct those arguments.
Originalists today can look to a couple of different places to uncover the meaning of constitutional text. They can try to understand what the Framers themselves intended their language to mean; they can try to determine what the participants in the various states’ ratifying conventions understood the language to mean; and they can try instead to ascertain what a reasonable member of the public in 1789 would have understood the language to mean. For these inquiries, practitioners of originalism can turn to, and accord varying weights to, the delegates’ comments at the Constitutional Convention, the notes the delegates took there, their private correspondence and published writings, the comments and notes of the delegates to the various state ratification conventions, the published arguments of contemporaneous advocates for and opponents of ratification, and period dictionaries, pamphlets, and newspapers.
Would Bailey and McCorkle have had such material at hand in their Salisbury offices? It seems highly unlikely. Surviving collections suggest that mid-19th-century lawyers—if they acquired significant numbers of books at all—collected practical volumes to support their day-to-day practice. Lawyers had neither the need nor the resources for costly compendia of ratification debates and works of Enlightenment-era political philosophy.
Consider, as one particularly rich example, the remarkable Smith Nicholas collection housed at the Filson Historical Society in Louisville, Kentucky. It preserves the law library of three lawyers who practiced during the 19th century—lawyers, it should be noted, a good deal more prominent than the North Carolina attorneys handling Hill v. Kessler. Most of the collection’s 112 legal titles are works on English law. Included, in the words of an expert on the collection, are “texts and reports in equity, common law, criminal law, family law, mercantile and international law, real and personal property, conveyancing, contracts and obligations, trial practice and pleading, evidence, appellate practice, tax law, and chancery practice.” Only one book in the collection would have had any value for a constitutional originalist: the first volume of the Federalist Papers.
Another example of an extant 19th-century-law-office library is the Colcock-Hutson collection held at the University of South Carolina Law Library. It represents the acquisitions of five generations of attorneys in South Carolina’s Beaufort, Jasper, and Hampton Counties, stretching from 1744 to 1939. The collection consists of 419 donated physical volumes and an inventory of an additional 285 books that were not donated. Among the 704 items, only two touch on American constitutional law: the fifth edition of Thomas Cooley’s Constitutional Limitations, published in 1883, and William Rawle’s A View of the Constitution of the United States of America, first published in 1825. Neither of these offer much, if anything, in the way of contemporaneous evidence of constitutional meaning in 1789. The rest of the collection consists mostly of English and American case reports and treatises on English and American common law and court practice.
So Bailey and McCorkle would have had to leave their offices if they were to develop arguments about the original meaning of “impairing” a contractual obligation. Where could they have gone?
They could not have looked to their local public library, because there wasn’t one. A public library wouldn’t open in Salisbury until 1921. Charlotte, some 40 miles away, had almost twice Salisbury’s population, but it, too, had no library; that town’s Literary and Library Association first opened its subscription service in rooms above a bookstore in 1891.
The lawyers might have been tempted to schedule a trip to Chapel Hill, to visit the University of North Carolina (where, in the present day, I teach law). There they could have perused the holdings of the state’s largest library—a collection whose size a librarian of the time estimated as “not far from seven thousand” volumes. It is unknown whether those included any sources useful to a lawyer trying to determine the original meaning of the verb impairing as written in the Constitution. But even if the lawyers could have hoped that that collection might contain something helpful—say, James Madison’s Notes on the Debates in the Federal Convention or Joseph Story’s Commentaries on the Constitution of the United States—a trip to Chapel Hill would likely have been a lengthy and expensive fool’s errand: The university was in free fall after the Civil War ended, its functions largely suspended in 1868 and 1869 on the way to a complete shutdown in 1871. Getting to the university would have meant taking a full day’s train trip from Salisbury along about 100 miles of track and bridges still recovering from Civil War damage as far east as Hillsborough, and then switching to horse or carriage for the 12 miles south to Chapel Hill.
If the lawyers were really intrepid, their best chance of finding a helpful source would have been to ride the eastbound train another 40 miles past Hillsborough to Raleigh, the state’s capital. There they could have sought permission to access materials from the North Carolina Law Library on the first floor of the capitol building. Those materials are listed in a catalog prepared in 1866 by the state librarian Oliver Hazard Perry, so we know exactly what attorneys Bailey and McCorkle would have found at the end of their journey to help them make their case about the original meaning of impairing: Bouvier’s Law Dictionary, Webster’s Dictionary, and Story’s Commentaries on the Constitution. That’s all.
Not Madison’s Notes. Not the Journal, Acts and Proceedings of the Convention, Assembled at Philadelphia, Monday, May 14, and Dissolved Monday, September 17, 1787, Which Formed the Constitution of the United States, edited by John Quincy Adams and issued as a government publication in 1819. Not Jonathan Elliot’s The Debates, Resolutions, and Other Proceedings, in Convention, on the Adoption of the Federal Constitution, published in 1830. Not even the Federalist Papers. The lawyers litigating Hill v. Kessler would have had essentially nothing on which to ground an originalist argument about what “impairing” a contract meant in 1789.
This is not to say that the lawyers couldn’t have developed any rival arguments about the meaning of the words in the contracts clause. The North Carolina Law Library held a complete set of the United States Reports, for example, so they could have mined the Supreme Court’s relevant precedents for possible arguments. (And as the proceedings played out, it was through analyzing precedents, not searching for original meaning, that the Supreme Court actually resolved the case in Kessler’s favor.)
What they couldn’t have done was litigate distinctively as originalists. Whatever they might have wanted to tell the North Carolina Supreme Court about the original meaning of impairment, they would’ve been stymied by a judge simply asking, “How do you know?”
Nothing about the constitutional issue in Hill v. Kessler or the Salisbury lawyers William Bailey and James McCorkle is unusual. The same resource problem would have hamstrung lawyers in Dover, Maine, or Johnstown, Pennsylvania, or Hopkinsville, Kentucky, or Jackson, Mississippi, litigating any question of constitutional meaning.
“To figure out what the law is, we go to the source.” So said Associate Justice Amy Coney Barrett (then a U.S. circuit judge) at a 2019 Federalist Society panel on originalism. Going to the source today is a real option—easy, in fact. Anyone with an internet connection can do it. Going to the source in the early and mid-19th century was practically impossible. Originalism today is an available strategy for ordinary lawyers only because of modern technology and resources.
Does this mean that originalism is the wrong way to interpret the Constitution? No. Lawyers have windows on meaning today that can reveal all sorts of things about what its text may have connoted. They’d be foolish not to look through them.
But can we insist, as so many do, that originalism must be the right way—the single one?
Only if we believe that lawyers throughout the 19th century practiced law inaccurately, ignorant of the truth. And that would be a strange thing for anyone to think—especially someone committed to looking for the truth in the past.
