Darwinism and the Federal Constitution
By Kelby Fletcher
As in years past, the federal courts are weighing competing interpretations of the U.S. Constitution. When working with the Constitution, some judges and justices increasingly say they are “originalists.” This is an approach to viewing the Constitution based on their understanding of its text at the time it was written.
Yet this does not take into account how the Constitution evolved through many amendments. Those amendments change the way the Constitution should be viewed.
As originally ratified, the Constitution was far from democratic. While the preamble states “We the People” established it, one can plausibly state “the people” were but a small slice of the population. This is because it was anti-democratic by design. And in comparison [to] the Washington Constitution, originally adopted one-hundred years later, the federal Constitution is bizarre.
Consider:
- Many of the founders were enslavers. They fought for and obtained a compromise allowing an enslaved person to count for three-fifths of a non-enslaved person for purposes of representation in the House of Representatives.
- As a result of the 3/5 rule, states with legalized enslavement had outsized representation in Congress.
- A president was elected by an electoral college chosen by electors in a manner set by each state’s legislature. A legislature could appoint its electors equal to a state’s representation in Congress, and not have them popularly elected. This was true in several states in the early presidential elections. The 3/5 rule allowed slave states to have disproportionate influence in the selection of a president.
- Only men could vote in each of the states. And, in most states, it was necessary for a man to own a certain amount of property. This was a pay-to-play system.
- In the first presidential election, 28,000 votes were cast by eligible men in a nation with a non-enslaved population just shy of 3,200,000. Many electors were chosen by state legislatures without a popular election.
- Senators were selected by state legislatures for six-year terms. Each state was guaranteed the same number of senators regardless of population. In the Senate, a state with millions of citizens has the same influence as a state with a hundred thousand.
And still, federal judges and certain executive officers (other than the president and vice president) are appointed by the president with the consent of the Senate. Federal judges have lifetime appointments. If this is the originalism being followed, it is not difficult to approve political gerrymandering and to disfavor regulations about the influence of money in elections. And presumably it was not difficult to rationalize the Supreme Court decision in Dred Scott v. Sandford, 60 U.S. 393 (1857), holding that Black Americans were not citizens.
Perhaps these rationales would allow the conclusion that money and property are the only portals to power — and that the president enjoys unlimited power and immunity.
But the Constitution evolved. Various amendments make it more democratic.
- The 13th Amendment abolished slavery.
- The 14th Amendment guaranteed citizenship to persons born or naturalized in the United States. This nullified Dred Scott.
- The right to vote was guaranteed, regardless of race or previous enslavement, by the 15th Amendment. Women were not mentioned; no state allowed suffrage for women until 1869, when Wyoming enfranchised women.
- An income tax was allowed by the 16th Amendment in 1913.
- Direct election of senators was required by the 17th Amendment, also in 1913.
- Women were specifically allowed to vote in all elections by the 19th Amendment in 1920.
- The District of Columbia was given electors by the 23rd Amendment in 1961.
- The 24th Amendment abolished taxation on the right to vote in 1964.
- In 1971, the 26th Amendment extended voting rights to citizens 18 and older.
This evolution broadened the ability of the people to elect the national government. From the small proportion of citizens eligible — and allowed — to vote in 1788 to the far greater proportion of citizens in our era, my guess is that most of the property-owning — human and otherwise — white men participating in the Philadelphia Convention in 1787 would be appalled by this evolution. Their experiment with a written constitution was noble, but it enshrined a noble class. The ability to tax progressively and expand access to voting casts doubt on the idea that money should have unfettered influence in elections, among other things.
We see that the Washington Constitution, adopted one-hundred years after the federal one, is far more democratic. Most executive officers are elected: governor, lieutenant governor, attorney general, superintendent of public instruction, treasurer, insurance commissioner, etc. Judges at all levels are elected even if initially appointed by a governor to fill a vacancy. And our state constitution has evolved to give legislative powers to the people through initiative and referendum.
When we hear or read of constitutional originalism, be wary. It is necessary to escape the notion that the “original” Constitution is what we have today. Perhaps there are judges and justices who don’t believe in or understand evolution.
Kelby Fletcher is of counsel to Stokes Lawrence, PS. The views expressed here are his alone and do not reflect the views of his firm or any client.
