Heritage Foundation’s John Malcolm on its new originalist analysis of the Constitution

William Brangham:

This week marks 238 years since the signing of the U.S. Constitution at Independence Hall in Philadelphia. The language of that document has been debated ever since by lawyers, judges, and scholars.

Tonight, we bring you the first of two conversations about that debate.

Amna Nawaz recently sat down with John Malcolm. He's the executive editor of "The Guide to the Constitution," which is put out by the conservative Heritage Foundation. It's part of our On Democracy series about the range of perspectives about how our government should function, what led to this moment in history, and where the country goes next.

Amna Nawaz:

John Malcolm, welcome to the "News Hour." Thanks for being here.

John Malcolm, The Heritage Foundation:

It's a pleasure to be with you.

Amna Nawaz:

So, there were two earlier editions of this book, 2005 and 2014. You have called this edition dramatically different from those first two. How so and why this book now?

John Malcolm:

This volume, 900 pages, covers every clause of the Constitution, 213 essays. There's a preface by Justice Alito and a forward by former Attorney General Ed Meese.

It covers each clause, all the way from the experience of what the columnists were experiencing with respect to that issue at the hands of the British, and then how that issue was treated in the Articles of Confederation, how it was discussed at the Constitutional Convention, how it was discussed at the ratifying conventions, and then how early administrations, the Washington, Adams, Jefferson, administration, treated that issue, and then finally how the courts have treated that issue.

And it's designed to help originalist scholars and originalist judges do the research that they need to answer important constitutional questions that they face and also for the general public to learn a little bit about why these clauses were meaningful and what their meaning still is today.

Amna Nawaz:

And it makes the case, as you mentioned, for lawyers and judges that they should view the Constitution through that lens of originalism, which has really come to dominate conservative legal thought over the last generation.

For the layman, anyone tuning in now, what does that mean to view it through an originalist lens?

John Malcolm:

Sure. Originalism just means that we are — when you are interpreting the words and phrases of the Constitution, you try to discern what those words and phrases meant at the time that particular provision was ratified.

And it's not just a conservative approach to analysis. I mean, of course, the Supreme Court now, they almost all profess to be originalists, including Ketanji Brown Jackson, who said that she is guided by originalism, which is a constraint on her authority, during her confirmation hearing. Elena Kagan famously said during her confirmation hearing, we're all originalists now.

And any lawyer who is arguing a constitutional case who does not begin with the text and try to discern its original meaning is highly likely to lose.

Amna Nawaz:

Any of those progressive originalist ideas, are they represented in this book too, or are they all conservative viewpoints?

John Malcolm:

Well, it's not conservative viewpoints. They're originalist viewpoints.

So originalism might be contrasted with what progressives refer to as living constitutionalism, which is basically saying, well, these words and phrases are malleable, so we will adapt them to current times. And originalists will say, no, this is part of our original compact that we made. There is an article, Article 5 in the Constitution, that talks about ways to amend the Constitution.

It has been amended 27 times throughout our nation's history. And if we're going to go back and change the fundamental charter, it should be done that way, and not by an edict from five justices sitting on the Supreme Court.

Amna Nawaz:

So this idea that the Constitution is a living, breathing document that you have heard from some folks, that it's intentionally written broadly, so it can be interpreted with the times, you disagree with that?

John Malcolm:

I do. I think it's very much an enduring document, but it's not a living and breathing document.

The framers realized that there would be changing circumstances. So, for instance, the First Amendment applies. It applies whether you were talking about writing on parchment or whether you were writing on the Internet. Obviously, the framers of the Constitution could not have envisioned the Internet.

So those enduring principles can be applied to modern circumstances. But you can't just change the meaning of the words because times have marched on. For example, there is a phrase in the Constitution, domestic violence. Domestic violence meant at the time that provision was ratified an internal rebellion. It did not mean fighting between spouses.

Amna Nawaz:

At the same time, I know you have heard this criticism as well. This is a document that was written in the 1780s, right? So critics of this approach shall also point out it was written when women couldn't vote, when Black people were viewed as property under the law.

So why revert to the intentions from a time when that was acceptable, rather than a time when there was an expansion of rights? What would you say?

John Malcolm:

Well, obviously, there has been an evolution in terms of people's thoughts. And we now have an amendment that gives women the right to vote. And we have an Equal Protection Clause in the 14th Amendment that gives rights to minorities. They're entitled to equal protection of law.

We obviously had to fight a Civil War in order to give African Americans their freedom and the right to vote. So the Constitution was not a perfect document. It was a compromise among 13 states that were trying to form a unified nation to fight against all of the enemies they had, both foreign and domestic. You had the French, the British, the Spanish, Native American tribes.

I mean, at the time the Constitution was being drafted, there had never been a document like it before. We didn't have a hereditary king. And it was an experiment. There was no way of knowing for sure whether our nation would survive. So, to some degree, a compromise was cobbled together.

But it's really brilliant in terms of its structure, separation of powers, checks and balances in the system. And the framers had the foresight to come up with a way to actually amend the Constitution if the people chose to do so.

Amna Nawaz:

At the same time, some of those amendments you referenced there, women getting the right to vote, the abolishing of slavery, those were amendments. In some of these essays, you argue that the amendments were wrongly interpreted, right?

What are some examples of those in the book?

John Malcolm:

We don't argue — well, we lay out what we think the history was behind that amendment and what the framers said. And then we talk about how courts have interpreted it. We don't put a label in terms of saying, this is right, this is wrong.

Amna Nawaz:

Is it fair to call it sort of a judicial guide, though, similar to the way Project 2025 was sort of an executive guide for this administration? Is that what you're laying out in the book?

John Malcolm:

No, I don't think so.

So Project 2025 was a bunch of policy prescriptions in a whole host of areas. It was saying how they thought — what Congress ought to do, what they thought executive branch officials ought to do. This is providing information to judges about how to do originalism and where they need to look when trying to divine what the original public meaning was of those words and phrases.

It's not telling them how they should rule on any particular issue or in any particular case.

Amna Nawaz:

We should point out there have been no significant amendments to the Constitution in over 50 years. Why do you think that is? Are we just a country that can no longer agree on those fundamental kind of changes to those founding documents?

John Malcolm:

No. Well, actually I would argue that in a number of cases the Supreme Court, under the guise of constitutional interpretation, has de facto amended the Constitution some in ways I might like, others in ways in which I wouldn't like.

Amna Nawaz:

Give me an example of that. Where have they done that?

John Malcolm:

Well, you can see that in all manner of things, same-sex marriage, abortion. They created a right to an abortion, and then they said that was erroneously decided.

So, different cases have effectively amended the Constitution without going through the formal Article 5 process. There is a convention of the states movement that's out there now that's thinking that there ought to be this alternative path to amend the Constitution, that perhaps it's time to consider that.

It's not easy to amend the Constitution. It wasn't meant to be easy to amend the Constitution. It was meant to be something that happened when there was a broad consensus across the political aisle, across a wide swathe of people. That is a virtue and not a bug. It's difficult, but it's not impossible.

Amna Nawaz:

John Malcolm of The Heritage Foundation and executive editor of the new book "The Heritage Guide to the Constitution," thank you for being here. We appreciate your time.

John Malcolm:

It's a pleasure. Thank you.