Mr. Madison's Intentions: Constructing the U.S. Constitution from 1787

In March of this year, the United States Supreme Court began to hear arguments over the constitutionality of President Obama’s signature piece of legislation, the Patient Protection and Affordable Care Act, passed in March of 2010. The central question of the case is whether the federal government can compel American citizens to purchase health insurance through an individual mandate 1 . Twenty-six states are currently suing the federal government over this issue. The decision of this case will have a tremendous impact on American lives, which begs further questions over the Court’s role—both intended and assumed—in the federal government as it relates to the people. There are a number of important theories about the appropriate role of the Supreme Court as well as the correct method for interpreting the Constitution. Justices such as Clarence Thomas and Antonin Scalia subscribe to a theory of interpretation known as “originalism.” This theory claims that there is a knowable, original meaning of the Constitution, from which modern judges should not stray. Originalist justices purport to carry out the meaning of the Constitution when it was written in 1787 without injecting present-day value judgments into the document 2 . In contrast to the originalist doctrine, living constitutionalism assumes that the Constitution is an evolving document, which changes to fit the times. Living Constitutionalist justices believe that the great value of the American Constitution is in its flexibility and ability to adapt to new conditions within the United States. It should be noted that the term, “living constitution”, has become a somewhat pejorative term; it is not intended in a negative light here 3 . Rather, this terminology is the best way to encompass a variety of non-originalist theories. This study investigates the advantages and disadvantages of both originalist and living constitutionalist theories of American jurisprudence, from a historical perspective. Did the “Father of the Constitution,” James Madison, envision an adaptable or a more stable, unchanging, Constitution? By studying Madison’s writings before, during, and after the Constitutional Convention, a clear understanding of the government that he set out to design can be discerned. 1 Adam Liptak, In Court, Sharp Questions on Health Care Law’s Mandate,” The New York Times, 27 March 2012, . 2 Robert H. Bork, The Tempting of America (New York, New York: The Free Press, Division of Macmillan, Inc.; 1990). 3 Stephen Breyer, Active Liberty: Interpreting our Democratic Constitution (New York, New York: Alfred A. Knopf, Random House; 2005).