Last Tuesday, in an extraordinary display of verbal efficiency, Hawaii Senator Mazie Hirono managed to pack an astonishing number of errors into just four short sentences. During a Judiciary Committee hearing on the legal ramifications of the Supreme Court’s recent ruling on abortion, Senator Hirono remarked:
“Originalism, the Justices who take that approach go all the way back to our Founding Fathers and pretend that they know what our Founding Fathers meant when they drafted the Constitution. I use the word pretend because who the heck would know what our Founding Fathers meant? Is there any reference to AR-15 rifles in our Constitution? No.”
There’s a lot wrong with that statement, but the Senator’s central question—“who the heck would know what our Founding Fathers meant?”—deserves a response. The answer is that you, I, and anyone with an internet connection or library card can know what the Founding Fathers meant.
At its most fundamental level, originalism is the belief that the Constitution still means the same things that it meant at the time it was written. A contract between two people can’t be changed willy-nilly, it must be interpreted according to its original meaning. Originalist constitutional interpretation holds that, since the Constitution is an agreement between the people and the government, it can’t be interpreted differently just because one side wants to impose a new meaning. Maintaining the same constitutional meaning keeps our rights secure, keeps the government limited, and keeps freedom flourishing.
How do we know what that meaning is? We know because the Founders told us. The Federalist papers, the Founders’ personal writings, the debates of the Constitutional Convention, and numerous other publicly available sources reveal the original meaning of the Constitution.
It’s not always easy to parse through those old documents, but it is entirely possible to get a pretty good understanding of what the Framers of the Constitution meant when they framed it. Senator Hirono herself, as a member of the Senate Committee responsible for vetting judges and justices, should have such an understanding. And it’s entirely reasonable to expect every member of the U.S. Supreme Court to have an excellent understanding of the Founders’ view of the Constitution.
Take, for instance, Justice Clarence Thomas’s recent opinion on the 2nd Amendment. He analyzed over 350 years of historical data on gun ownership, examining how the public understood the 2nd Amendment at the time of its ratification. From that analysis, Justice Thomas found a coherent originalist interpretation of the Second Amendment, one that that prevented the state of New York from arbitrarily denying the right to keep and bear arms.
At its core, “who the heck would know?” isn’t really a good-faith inquiry into who might have some sound constitutional insights. It’s a question meant to sow doubt, to encourage mistrust in the interpretive methodology that protects our Constitutional rights and limits governmental encroachment. After all, if no one knows what the Founders really meant, why not rewrite the Constitution to say whatever we want it to? Or more accurately, whatever Senator Mazie Hirono wants it to?
But we do know what the Founders meant. We are all capable of interpreting the Constitution in a manner consistent with its original meaning.
In short, Senator Hirono, we know, and we aren’t ceding our interpretive high ground. You’ll have to come and take it.