094 The Founding and the Fallacy of Original Intent

In The Past Lane - The Podcast About History and Why It Matters

This week at In The Past Lane, the history podcast, I speak with historian Andrew Shankman about his new book, Original Intents: Hamilton, Jefferson, Madison, and the American Founding. It’s a conversation that’s perfectly timed for the Senate hearings on President Trump’s nominee to the Supreme Court, Brett Kavanaugh. That’s because Kavanaugh adheres to a judicial philosophy known as originalism that argues judges must make their rulings based on a close reading of the Constitution that determines the original intent of the Founders. It’s a neat and tidy idea that suggests a commitment to objectivity and a faithfulness to the vision of the Founders. But as Andrew Shankman makes clear, there was no single, original intent because the Founders disagreed on nearly everything when it came to the Constitution.

In the course of our discussion, Andrew Shankman explains:

How Hamilton, Jefferson, and Madison initially agreed on many things, including a fear that the republic needed a stronger central government to avoid a descent into anarchy.

How eventually major differences emerged among these men over whether the government could exercise unstated but “implied powers” of the Constitution, or only powers that were explicitly enumerated in the document.

Why it’s impossible, despite what so-called originalists claim, to deduce an original intent of the Founders in the Constitution.

Why originalism is ahistorical and ignores the historical process and historical context.

Why we shouldn’t revere the Founders and more than they revered each other.

Recommended reading:

Andrew Shankman, Original Intents: Hamilton, Jefferson, Madison, and the American Founding (Oxford University Press, 2018)

Akhil Reed Amar, America's Constitution: A Biography

Richard Beeman, Plain, Honest Men: The Making of the American Constitution

David O. Stewart, The Summer of 1787: The Men Who Invented the Constitution

Gordon S. Wood, The Creation of the American Republic, 1776-1787

More info about Andrew Shankman - website

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Music for This Episode

Jay Graham, ITPL Intro (JayGMusic.com)

Kevin McCleod, “Impact Moderato” (Free Music Archive)

Andy Cohen, “Trophy Endorphins” (Free Music Archive)

Jason Shaw, "Acoustic Meditation,” (Free Music Archive)

Jon Luc Hefferman, “Winter Trek” (Free Music Archive)

The Bell, “I Am History” (Free Music Archive)

Production Credits

Executive Producer: Lulu Spencer

Technical Advisors: Holly Hunt and Jesse Anderson

Podcasting Consultant: Dave Jackson of the School of Podcasting

Photographer: John Buckingham

Graphic Designer: Maggie Cellucci

Website by: ERI Design

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© In The Past Lane, 2018

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