At The Atlantic, Richard Primus: Will Lin-Manuel Miranda Transform the Supreme Court? (Via Balkinization). The article opens with a discussion of original meaning:
To the extent that the Constitution has an actual original meaning, that meaning is fixed by historical facts. What shapes constitutional law, however, is not the actual original meaning of the Constitution. It is the original meaning of the Constitution as imagined by judges and other officials at any given time. And how judges imagine the original meaning of the Constitution depends on their intuitions—half historical, half mythical—about the Founding narrative. If you can change the myth, you can change the Constitution.
Primus focuses on Justice Scalia’s interpretation of founding father Alexander Hamilton:
Twenty years ago, in an opinion curtailing the federal government’s power to regulate gun sales, Scalia described Alexander Hamilton as the most nationalistic of the Founders. It was not a compliment. It was a reason, in Scalia’s view, to discount an argument based on one of Hamilton’s arguments in the Federalist Papers, an argument that would have upheld broad federal power to regulate in the case at hand. The true Founding view, Scalia wrote, was better captured in a different Federalist Paper by James Madison, who was more skeptical of central authority. Hamilton was out of step.
Scalia was not wrong to think of Hamilton as a fervent supporter of national government. But Hamilton’s views were not as marginal as Scalia’s treatment suggested. Any number of leading Founders were aggressive centralizers in 1787—Madison included. Writing for a majority of the Supreme Court, though, Scalia’s confidence in the Founders as local-power, small-government types enabled him to imagine Hamilton as an outlier who could be dismissed. The same set of assumptions also framed Scalia’s reading of Madison’s essay—an essay that would easily bear a more nationalistic reading than Scalia gave it. I assume, of course, that Scalia and the rest of the Court’s majority made these interpretive moves in good faith. Quite authentically, they thought of Hamilton as nonrepresentative and of Madison as skeptical of central authority. Those attitudes supported an interpretation of the sources that blocked an exercise of federal lawmaking.
He then discusses the musical's interpretation of Hamilton:
Lin-Manuel Miranda’s musical, which opened in the last year of Scalia’s life, will make it harder for the next generation of American lawyers to think of Hamilton as marginal. A large and ecstatic audience now knows a narrative of the Founding on which Hamilton is protagonist and hero. If that perspective prevails, then future readers of originalist source material will hear Hamilton’s voice more loudly. Moreover, if Hamilton’s ardent support for centralized power is taken as the view of a leading figure, it will be easier to read the writings of other Founders as leaning further toward national authority. Certainly, the sources will bear more nationalist readings than the Court has given them in recent decades. The question is whether the judges and commentators who do the reading will continue to expect Founding texts to lean against federal power, as they have in the past generation, or whether the next generation of readers will develop the intuition that the nationalism Hamilton represents was an authentic Founding view.
And finally, how Hamilton will contribute to the rise of liberal originalism
That should have two mutually reinforcing effects. First, Hamilton will prime people in the audience who interpret the Constitution for a living—law professors, judges, and others—to think, consciously or otherwise, that the historical sources will bear politically progressive readings. Second, and more importantly, it will change who is inclined to tell the story, rather than leaving that story for someone else. If liberals of all races become confident storytellers about the Founding, they will put their own spin on the sacred sources, consciously or subconsciously, and across a broad range of issues. [ . . . ] The point is that by offering a version of the Founding that resonates with liberals today, Hamilton will encourage liberals to embrace the Founding rather than running away from it. And when liberals appropriate the Founding, they will emphasize both consciously and subconsciously those sources that can be made to do work for liberal causes in modern constitutional law. Some of those causes will coincide with the politics of Hamilton, or those of Hamilton, or both. Others may not. But we can be confident that the meanings that liberals give to the Founding, once they are inclined to play the game of originalism, will be liberal-leaning meanings. What matters is who tells the story.
What is required for liberal originalist jurisprudence, then, is a Supreme Court staffed by relatively liberal judges who have the capacity and the inclination to imagine the Founding as the origin story of the America they would like to believe in. [ . . . ] The incentive to deploy the power of originalism will be clear. Originalism is a technology of legal change, and after 50 years of Republican majorities, a Democratic majority might find a few things worth changing. The remaining question will then be whether the justices can imagine the Founding as a source of inspiration and authority for progressive nationalists after several decades when the dominant resonance of that era has run the other way. If liberal judges have any trouble engaging in that exercise on their own, Hamilton will help them take their shot.
A great essay, but I find the idea of Hamilton as a liberal (leftist) hero pretty amusing. I kind of doubt it would survive a Trump presidency.
Posted at 6:47 AM