The Telling Constitutional Politics of an Early 20th-Century Originalist

In 1900, Baltimore attorney Arthur Machen Jr. wrote the first law review article to name and criticize the concept of a “living Constitution.” In “The Elasticity of the Constitution” for the Harvard Law Review, Machen insisted that the original intent of the Constitution trumped any consideration of changing values and political expediency. He was a constitutional orignalist nearly 80 years before “originalism” became the watchword of the conservative legal movement. Few scholars have recognized this early version of originalism, and none have analyzed Arthur Machen’s constitutional politics—his originalism in action.

Machen engaged in three great constitutional political battles. First, from 1904 to 1910 he sought to mount an explicit challenge to the Fifteenth Amendment and its guarantee of Black suffrage within Maryland state politics. He employed creative readings of Article I of the Constitution in an attempt to invalidate or limit Reconstruction’s reach. From its passage to repeal, Machen Jr. also fought against Prohibition by claiming a libertarian Constitution that guaranteed states’ rights. Finally, from 1935-1937, Machen brought his criticism of the New Deal to Court by suing for greater payment on his government bonds on another inventive reading of Article I. Ultimately, Machen’s originalism made its influence felt through his brother, J. Gresham Machen, the most influential evangelical theologian of the 20^th century and godfather of the Christian Right. Moreover, he foreshadowed the malleable and antimajoritarian conservative politics would often accompany conservative originalists throughout the 20^th century despite their claims to jurisprudential neutrality.