A Look at Originalism

Guest Opinion

By Stewart MacLeod | March 23, 2024

O Tempora O Mores! Oh the times, oh the culture. This Latin phrase relates to both the 18th century and our current times.

Are Originalists—those who think we should base the interpretation of our country’s founding documents on the times and the views of their crafters—basing their theories on actual history? This is not just a pedantic question; it affects legal decisions being made today, from the lowest to the highest courts in the land.

There is so much that our founding fathers said and wrote that belies what today’s Originalists are saying. Our founding documents are being subjected to gross misinterpretation, and we are past due a discussion based on verifiable fact. Because there is so much to consider in relation to this, I thought we should narrow the discussion.

When we look at Originalism, two things stand out to me: The separation of church and state, and the 2nd Amendment. If Originalists want to draw upon the original meaning of our founding documents and the intentions of our founding fathers, we need to look at both issues.

There are those who would have us believe the United States should be a Christian nation guided by Christian principles. The problem is, the founding fathers, including our first three presidents, believed and stated clearly that there should be a separation between church and state.

President George Washington stated that, “To this consideration [drafting a Constitution] we ought to ascribe the absence of any regulation, respecting religion, from the Magna-Charta of our country.” He also wrote to the United Baptist Churches of Virginia about “…the horrors of spiritual tyranny.”

Our second President, John Adams, signed the Treaty of Tripoli, which stated “...the Government of the United States of America is not, in any sense, founded on the Christian religion.” And he wrote that the government was not based “…under the influence of Heaven…” but by using “… reason and the senses….”

Thomas Jefferson, president number three, described the separation of church and state as “…building a wall of separation….” in his letter to the Baptist Association of Danbury, Connecticut.

Moreover, John Jay co-authored the Federalist Papers advocating for the ratification of the entirely secular U.S. Constitution—despite his being a devout Christian.

In addition, the phrase “under God” was not added to the Pledge of Allegiance until 1954, and the pledge itself wasn’t published until 1892.

Based on these statements, and the wording of the 1st Amendment of our Constitution, what do Originalists today and those advocating for these ideas base their claims on?

As for the 2nd Amendment, it begins, “A well regulated militia, being necessary to the security of a free state…” The founders intended a militia that could come to the nation’s defense when needed but were distrustful of a standing army and what might ensue therefrom.

Today, with our current need for a large standing army and many state national guards, how can Originalists justify the personal use of AR-15s and other automatic and semiautomatic weapons that have reason to be used only in a military setting? When our original documents were drawn up, militias were still using flintlocks. Personal weapons with the destructive power of those today would have been inconceivable to our founding fathers.

Although our country’s founding generation certainly esteemed the idea of an armed population for the security of the nation, they were also ardent supporters of gun regulations. Gun regulation and gun ownership have always existed side by side in American history. The 2nd Amendment poses no obstacle to enacting sensible gun laws. When it comes to gun laws, today’s Originalists are tilting at windmills. They need to look more closely at our founding documents and read the history of our founders.

An important thought on gun ownership of our founders was the collective rights view (the need for defense of the nation) vs. an individual rights view. Our founders’ intent was definitely the collective rights view.

Many of their ideas on regulation were based on English common law of the day. Looking back, these included no general right of armed travel and certainly no right to concealed weapons.
Common law also judged that one had a duty to retreat whenever possible and not stand one’s ground. Using deadly force was justified only when there was no other possible alternative. Exception was made under the so-called “castle doctrine,” which allowed the use of deadly force if the aggressor was in one’s home. A more aggressive view of self-defense emerged after the Civil War.

Our original fathers spoke and wrote about our democratic republic and what would be needed to maintain it. Those founders must be rolling over in their graves at the ideas now being promulgated in their names.

Stewart MacLeod earned a BA in History at Albion College and an MA in Ottoman History at the University of Michigan. He then spent 30+ years as a Turkey area analyst for the U.S. government before retiring to Traverse City.