Joel Jacobsen

Antonin Scalia joined the Supreme Court in 1986.  From 1986 to the present, the Supreme Court has used the word "framers" in its opinions 219 times, and "founders" another 89 times.  Not all of those are references to the framers or founders of the Constitution, but most are.  (In this case, Justice Scalia refers both to the Framers of the Constitution and the framers - small f - of a statute.)

I tried to discover which justices appealed to the framers most frequently using Westlaw.  I won't vouch for the results I reached, because Westlaw is a bit inconsistent with regard to detail work, possibly the result of coding errors at the time the data was originally entered.   So we should perhaps call these figures "preliminary data."  They suggest that the justice who has, since 1986, made the most frequent references to the "framers" is Justice Stevens (42).  In second place, tied with Scalia (35), is his frequent antagonist, the sorely-missed Sandra Day O'Connor (35), the last justice with common sense.  Rehnquist (29) and Kennedy (28) are close behind, but Justice Brennan (16) - who retired in 1990 - tops Justices Thomas (15), Ginsburg (14) and Breyer (11).

But who were these framers?  The justices take it for granted that we know who they are.  Their assumption seems to be that the framers were the guys who wrote The Federalist, plus the guys wearing wigs on our currency.  

Since 1986, according to Westlaw, there have been 68 occasions on which one or another justice used the word "framer" or "founder"  in the same paragraph as Federalist, Madison or Hamilton.   If for the latter three names you substitute Jefferson, you get an additional 24 hits.   Plugging in Washington produces nine more, not including references to the city or state of the same name.  Adams rates seven mentions in the same breath as "framer" or "founder."  (Adams isn't on any currency but he did get a fat bestseller recently, and a PBS film and mini-series before that, which surely is at least as good as getting your mug on the two dollar bill.)

Gouverneur Morris, whom Richard Brookhiser termed "the rake who wrote the Constitution", gets five mentions. The still semi-anonymous Federal Farmer contributes 3 more.   Brutus, generally thought to have been New York's Judge Robert Yates, who possessed the most acute legal mind of any commentator on the proposed Constitution, gets more than a passing mention only in a single Thomas concurrence.  (On the other hand, it's one of Thomas's most memorable opinions, beginning as it does with "It never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior.").

These men all belong in the American Pantheon.  Some (Jefferson, Madison, Hamilton) qualify as geniuses, one (Washington) was almost unbelievably noble and far-seeing, others were just extremely talented (Adams, Yates).   But what does it mean to call them "framers" of the Constitution? 

Shannon Stewart took time out from his busy baseball career to phrase the pertinent questions in the Journal of Contemporary Law: "Who were the Framers?  Are they the men who wrote the Constitution, those who ratified it, or those who subsequently amended it?"  Well, maybe it was a different Shannon Stewart, but the Journal doesn't provide biographical details.  (17 J. Contempt. L. 91.) 

Leicester University's Aileen Kavanagh likewise raises questions about what she - a true academic - terms "epistemic difficulties.  First, there is the problem of establishing who counts as a 'Framer': Is it the drafters of the text, the members of the Philadelphia Convention, the ratifiers, or the people who elected the ratifiers?"

Dozens of other students and professors have asked similar questions, but they don't strike me as difficult to answer.  The people who drafted the text of the Constitution were its framers only in the sense that the anonymous drudges slaving away in the Office of Legislative Council are the framers of federal legislation.  The architect, the construction workers and the owners all say "I'm building a house", but they mean quite different things by it.  The drafters of the Constitution were framers in the same sense as the construction workers.

The United States justified its declaration of independence on the principle that governments "deriv[e] their just powers from the consent of the governed".  If that principle is taken seriously, then it seems plain that the "framers" of the Constitution - the only people whose intentions deserve to influence our government today - are the electors of the delegates who ratified the Constitution.  If the Constitution is accepted as a democratic document, in short, the demos is responsible for it.

What this means is that the Supreme Court, from Justice Stevens on the supposed left to Justice Scalia on the supposed right, rejects the notion of the Constitution as a democratic document.  The implications of this point will be addressed in future posts.