The Birth of the Dead Constitution: Arthur Machen Jr.’s Early Twentieth-Century Originalism

In 1900, Baltimore attorney Arthur Machen Jr. wrote an article for the Harvard Law Review rejecting a “living” Constitution and arguing that the Constitution should be interpreted according to “the intent of the framers.” Though some scholars have recognized this surprisingly early articulation of constitutional originalism, this article analyzes Machen’s originalism in light of the constitutional politics he pursued and his intellectual influence on the later rise of originalism within American conservatism. Specifically, Machen claimed originalism for its utility in rolling back elements of Reconstruction and defending against the proposed changes of Progressives and their living constitutionalism. For roughly a decade after its publication, he sought to overturn the Fifteenth Amendment and Black suffrage, claiming the constitutional text of the Founding trumped the intent of Reconstruction. Later, he turned his originalist ire on Prohibition and the Eighteenth Amendment and then the New Deal. Among those persuaded by Machen’s originalism was his brother, J. Gresham, a leading fundamentalist theologian whose students adopted their mentor’s constitutional politics as they became leading figures in the New Christian Right of the later twentieth century. Through his brother, Arthur set the stage for an evangelical mass movement whose grievances against legal liberalism encouraged the official adoption of originalism by the Reagan Department of Justice under Attorney General Edwin Meese in the 1980s. Recovering this long history of constitutional originalism reveals that many of its features were present in the early twentieth century, such as: its reliance on a sacralized American Founding, its resistance to democratization, its connection with fundamentalist Protestant biblical literalism, its argumentative malleability, and its utility for a range of conservative political ends. Ultimately, the “dead” Constitution can only be understood in the context of its evolution from an early twentieth-century birth.