It is hard to know which was less foreseeable: that a reality-TV star with no government experience would be the Republican nominee for president or that the smash hit of Broadway would be a rap opera about the man behind the Federalist Papers. But there is a reason why the two phenomena arise at the same time, and there is a reason why that time coincides with the end of America’s first nonwhite presidency. The birther-in-chief’s campaign for high office and Lin-Manuel Miranda’s Hamilton: An American Musical speak to the same deep issues about American identity at a time when the nation’s demography increasingly resembles that of the larger world. They just approach the subject from different perspectives. One seeks to protect an America that is still mostly white and Christian against Mexicans, Muslims, and other outsiders deemed dangerous. The other is so confident in the multiracial future that it rewrites the American past in its image. The passions that each one inspires are rooted in part in the desire to reject a vision of America that the other one represents. They are, in short, the same national transition but from opposite sides of the looking glass, and the year 2016 is a struggle between the two. History has its eye on them.
The result of this contest will shape the future of constitutional law. If Donald Trump is elected, the Republican Party may extend its hold on the Supreme Court into the indefinite future. If he loses, the Court will have a majority of Democratic appointees for the first time since 1970. But that prospect, momentous enough on its own, understates the transformation that may be coming. To see the larger possibility, one must imagine not just a majority-Democratic Supreme Court but a majority-Democratic Supreme Court in a world after Miranda’s Hamilton.
The writing of the Constitution is part of America’s origin story. Not coincidentally, judges as well as other Americans commonly read the Constitution through their assumptions about the Founding generation. And if the history of constitutional law shows anything, it is that the “original meaning” of the Constitution changes over time. Not the actual original meaning, of course. 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.
Hamilton is changing the myth. For decades, originalism in constitutional law has had a generally conservative valence. Now, week by week, the thousands of patrons who pack the Richard Rodgers Theater and the hundreds of thousands more who listen obsessively to Hamilton’s cast album or download the viral videos are absorbing a new vision of the American Founding. And so the balance shifts. With the Supreme Court on the brink of moving leftward and Hamilton electrifying audiences from the Grammys to the White House, the lawyering class’s intuitions about the Founding are poised to change. The blockbuster narrative of this election year retells the nation’s origin story as the tale of a heroic immigrant with passionately progressive politics on issues of race and on issues of federal power. The audience is on its feet. So to all those Americans who expect original meanings in constitutional law to support mostly conservative outcomes, here is your Miranda warning: Within the foreseeable future, a jurisprudence of original meanings may fuel the most progressive constitutional decision making since the days of Chief Justice Earl Warren. Just you wait.
***
From the late 1930s until the early 1970s, the Supreme Court was an agent of progressive social change. The justices issued landmark decisions on racial desegregation, voting rights, free speech, criminal procedure, and sex equality. The Court also authorized active federal management of the national economy, ambitious social-welfare programs like Medicare and old-age pensions, and a host of other new departures that would earlier have been thought to lie beyond the federal government’s jurisdiction. Millions of Americans saw the Court as a heroic vanguard, a symbol of American ideals on the march. But millions of others regarded the Court as undermining traditional American values and as dangerously out of control. The critics were not uniform in their explanation of what the Court was doing wrong. There were many different complaints, some more reasoned and some more hysterical. But among the charges laid at the justices’ feet, one of the most salient was that the Court was flagrantly disregarding the original meaning of the Constitution.
Not that the midcentury Court had forgotten the Founding generation. The Supreme Court actually made reference to the original meanings of constitutional clauses somewhat more frequently during the Warren era than it had earlier in the 20th century. In the eyes of Warren’s critics, though, that fact would have meant little, except perhaps that the devil can cite Scripture for his own purpose. The people who resisted the Warren Court had a clear sense that across a broad range of issues, the Court was doing something new, something that betrayed the vision of the Founding Fathers. In the critics’ view, the Founders mistrusted centralized power and therefore created a sharply limited federal government. The modern Court was permitting the central government a hugely greater role. And nothing in the decisions of the Founders, the critics thought, could justify the Court’s broad range of rulings threatening traditional American social arrangements—on race, sex, voting, school prayer, contraception, abortion, the supposed rights of accused criminals, and so on. The Founders had surely not foisted all that upon America. This was the doing of nine electorally unaccountable lawyers, acting beyond their authority.
By charging that the justices had departed from the Constitution’s original meaning, the critics were appealing to an authority higher than the Supreme Court. The correct interpretation of the Constitution, they insisted, lay in the understandings of the heroic generation who wrote and ratified the document. That was the law. The Court’s opponents accordingly demanded a different jurisprudence, one that would keep faith with original meanings and reject the new constitutional vision that the Court had been spinning out since the triumph of the New Deal.
During the last decades of the 20th century, this movement had considerable success. The Federalist Society—the nation’s premier association of conservative lawyers and judges—was founded in 1982 and rose to prominence promoting originalism as a fighting faith. President Ronald Reagan nominated Antonin Scalia to the Supreme Court in 1985. Three years later, Attorney General Edwin Meese declared originalism the administration’s official constitutional theory. The arrival in 1991 of Justice Clarence Thomas—a harder-line originalist than Scalia—gave the Court a working majority for taking the law in considerably more conservative directions. And in the years that followed, the Supreme Court invoked original meanings to justify landmark conservative decisions on a wide spectrum of issues, from the scope of federal regulatory authority to the right to bear arms.
It would be a mistake, however, to think that the association between originalist methods and conservative substance reflects some straightforward correspondence between the Constitution’s true original meaning and the preferred values of modern Republicans. The Founders were not an 18th-century incarnation of the Federalist Society, or the Cato Institute, or the Family Research Council, or any other modern conservative group. To be sure, the Founders did not imagine the modern regulatory state. But it should not be surprising that the framework they established developed into the robust form of central government that the United States has now had for nearly a century. The Founders’ project in making the Constitution was fundamentally about strengthening centralized governmental authority. Many delegates to the Philadelphia Convention had strongly pro-regulatory orientations. They wanted government to do more, not less. So to invoke the Founders as small-government conservatives is to misunderstand who they actually were.
The point here is not that original meanings, properly understood, support a left-leaning modern agenda rather than a right-leaning one. The Founders were also not an 18th-century incarnation of Planned Parenthood, Occupy Wall Street, or the Center for American Progress. The point is that the ideas of the Founders often direct no clear resolution to the questions Americans face today. For one thing, the Founders disagreed internally on most of the issues they discussed. Many individual Founders did not have consistent views of those issues and expressed different views at different times. Moreover, many of the issues the nation confronts today were not things that the Founders could have reasoned coherently about at all, just as no one today can reason coherently about many issues that Americans will confront in the year 2300. Even if the Founders had agreed on a single theory of free speech, there would be no way of knowing whether they would have agreed on that same theory if they had been required to grapple with, say, the regulation of video games, or super PACs, or the intellectual-property status of human-genome research. The Founders’ concerns sometimes overlap with those of modern Americans, such that one can read their writings and detect (or imagine) relevance. But the source materials they left behind are fundamentally indeterminate on most of today’s pressing questions—both because the Founders did not consider 21st-century questions and because they might not have agreed on answers even if they had.
That indeterminacy means that it is easy to read—or to misread—Founding-era sources in more than one way. But the different interpretations that modern Americans give the Founding are not arbitrary. They tend to follow a predictable pattern. Most of the time, modern interpreters read the Founders to endorse a resolution of the question at issue that makes sense to the person doing the interpreting. People who think that the federal government should have a broad mandate to address national problems are more likely to read the Founders as supporting vigorous federal power, and people who think the federal government should be more limited are more likely to read the Founders as valuing local control. The point should not be pushed too far: The source materials are not endlessly indeterminate, and sometimes judges agree about what they mean. But that happens more often in cases where the judges agree on the ultimate issue than it does in cases where the result is controversial. When the 21st-century Supreme Court decided its landmark cases on the scope of the Second Amendment, five justices read the Founders as having a broader view of the right to bear arms, and four justices read the Founders as having a narrower view of that right. Scalia led the first group, and Justices John Paul Stevens and Stephen Breyer led the second—a lineup about as shocking as the discovery of gambling at Rick’s American Café.
None of this means that justices deliberately manipulate the sources to support their own preferences. That might happen sometimes, but the dominant force pushing different people to different interpretations is something else. Most of the time, judges are responsible people who want to make good decisions, and they have intuitions about how the cases before them should be decided. They have the further intuition that the Founders, too, were responsible people who held good values and made good decisions. If one thinks well of the Founders, then one will naturally read their indeterminate writings as supporting sensible ideas rather than foolish ones. In controversial cases, judges disagree with each other about what sensible solutions would be. So they reproduce that disagreement in the register of originalism, disagreeing with each other about what the Founders thought in ways that parallel their disagreement about how the actionable questions should be settled. They agree, in other words, that the Founders were on the right side. They just disagree about which side the right side is.
But the fact that original meanings are indeterminate enough to offer support to people on both sides of many modern issues has not meant that liberals and conservatives have been equally inclined to make originalist arguments. On the contrary, there has been a key difference in attitudes, between liberals and conservatives, toward the enterprise of originalism itself. For the last half-century, conservatives have been more inclined than liberals to dive into the Founding, to embrace its characters and its sources, and in general to be confident that the Founders shared their own values on contested questions. The difference has not been all or nothing: Not all originalists are conservative, and not all conservatives are originalists. But in recent decades, liberals have as a general matter been more diffident than conservatives about resting on the authority of the Founders. That diffidence has acted as a brake on liberal storytelling about the Founding, thus largely ceding the field to the conservatives.
Liberal diffidence toward the authority of original meanings has had more than one source. In part, it reflects the fact that since the 1970s, liberals have largely been defending a constitutional status quo, and originalism’s combination of rhetorical force and substantive indeterminacy make it a potent technology of legal change. Originalism presents itself as the authority of the past, but the relevant past is not the tradition of yesterday and the day before. It is the purer past of Time Zero, from which our current practices have departed. So like most other forms of fundamentalism, originalism comes not to endorse an existing system but to sweep it away. Seen in this light, the fact that liberals late in the 20th century found originalism less attractive than conservatives did is partly a matter of who dominated the Court when. At the end of the Warren era, the status quo was relatively liberal. Opposition to that status quo was articulated in originalist terms. And for the conservative Courts that followed, originalism provided a theorized justification for a program of overruling the decisions of their predecessors.
But the complete explanation for the difference in liberal and conservative attitudes toward originalism is broader, and one big part of that broader framework has to do with race. The Founders were a cohort of wealthy white men, many of them slave owners. To people whose political commitments are closely tied to modern struggles on behalf of disadvantaged racial groups, celebrating the Founders can accordingly be fraught. To insist on racial egalitarianism and to emphasize its importance, it might be crucial to emphasize the ways in which one’s politics differ from the Founders’. On the Constitution’s bicentennial 30 years ago, and shortly before Meese embraced originalism on behalf of the Reagan administration, Justice Thurgood Marshall spoke forcefully about his inability to celebrate the Founders in a way that came easily to most if not all of his Supreme Court predecessors. Of course the Founders did great things, Marshall said, but the Constitution is worthy of modern allegiance only because later generations overcame the evils that the Founders sanctioned.
Conservatives became dominant in the field of constitutional originalism at a time when issues of race deeply divided the country’s white legal elite. In the 1950s and 1960s, that national elite largely supported the growing movement toward nondiscrimination. Not uniformly, but largely, and on both sides of the political aisle. Brown v. Board of Education was a 9-0 decision, and many leading lawyers who were skeptical of Brown as constitutional law agreed that segregation was evil as a matter of policy. But in the 1970s and 1980s, as the judicial docket filled with cases on busing and affirmative action, the Court and the elite professional ranks from which its members are drawn became split, substantially along partisan lines. With issues of race salient, and with Marshall’s critique ringing in their ears, white liberals understood that an uncritical embrace of the Founders would risk complicity in the continued marginalization of nonwhites. In other words, white liberal ambivalence about the Founders grew partly from the knowledge that the Founders did not share modern liberalism’s central commitments on issues of race and partly from the resultant anxiety that identifying too closely with the Founders would signal a lack of sufficient regard for the concerns of racial minority groups today. To be sure, modern conservatives do not endorse 18th-century racial mores, either. But liberals have been less comfortable with the notion of looking past the Founders’ racial views.
Perhaps not surprisingly, liberal constitutional theorists late in the 20th century responded in two different ways. One was by criticizing originalism. As these theorists pointed out, it makes little sense, either as a matter of democracy or as a matter of smart policy making, to decide modern issues by reference to the ideas of dead men who knew nothing of modern conditions. It makes still less sense when one realizes that the judges trying to extract meaning from Founding-era sources are not well-trained at reading historical materials. In my own view, these criticisms are pretty cogent. It is rarely sensible for 21st-century judges to try to decide constitutional cases on the basis of 18th-century ideas. But the notion that original constitutional meanings are legally authoritative has been robust enough to survive these criticisms. Judges go on invoking original meanings, and many scholars go on defending the practice, whether it makes sense or not.
Hence the second liberal response to the racial politics of originalism: the development of a form of originalism that would overcome the taint of Founding-era racism by overcoming the Founding itself. In a movement typified by Bruce Ackerman and Akhil Amar, both of the Yale Law School, a group of scholars embraced the idea that the authoritative meaning of a constitutional enactment is its original meaning but then, in an important twist, insisted that the most vital constitutional enactments in the U.S. system are not the enactments of the 18th century. Of equal or greater import, the theory ran, are the constitutional amendments adopted after the Civil War, and, in Ackerman’s version, the constitutional achievements of the New Deal era. Those later authorities, the thought continued, should be understood to modify the Founders’ Constitution far beyond the degree conventionally acknowledged, such that the proper understanding of the Constitution today owes more to the age of Franklin Roosevelt or Abraham Lincoln than it does to the age of George Washington and James Madison. The Founding moment was not to be erased, but it was to be deemphasized in favor of constitutional meanings that came later.
Those later meanings were still original meanings. They were the original meanings of, among other things, the 13th, 14th, and 15th Amendments, adopted after the Civil War. Constitutional interpretation was still to be fundamentally a matter of getting into the archives and understanding the ideas of people who made decisions long ago, if not always quite as long ago. These more expansive versions of constitutional originalism had important virtues, not least of which was their capacity to alleviate the race problem. If one wants to capture what is attractive about appealing to original constitutional meanings but without getting into bed with the slave owners, it might seem like a good strategy to develop a form of originalism that elevates the generation that outlawed slavery over the generation that practiced it. One who celebrates John Bingham, the anti-slavery man who shepherded the 14th Amendment through Congress, does not have to watch his left flank in the way that one who celebrates Madison, a slave owner, does.
But this liberal take on original meanings was never able to tap into the full power of old-time originalism, because the greatest cache in American constitutional culture lies, for all its faults, in the generation of 1787. Madison is a demigod. Bingham is known only to historians and law nerds, and even then shallowly. So by trying to shift the ground of originalism away from the 18th century, this group of liberals solved the problem of their ambivalence toward the values of the Founding era at the cost of ceding the most powerful weapons in the constitutional arsenal to their less racially squeamish adversaries. Originalism trades on the constitutional interpreter’s hunger for connection to the original American heroes. If something else is offered instead, that hunger will never be satisfied.
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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.
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.
One cannot know in advance how deeply a Broadway musical will change American intuitions about historical narrative. But it is hard to overstate the preliminary indications. Hamilton is a Pulitzer-Prize winning production whose cast album has gone platinum faster than any album in the history of Broadway. The music is blow-the-roof-off amazing, with both the musical-theater crowd and the leading lights of hip-hop exclaiming hosannas. The audience is not just listening; it is rapt. In cooperation with the Rockefeller Foundation, Hamilton’s production company has staged special performances for tens of thousands of students in New York City’s public schools. Soon, a collection of touring companies will bring the show to audiences across the country. If art can change ideas—and of course it can—then it does look like a new vision of the Founding is ready to rise up.
As a weapon of social change, Hamilton is trained directly on the intuitions that previously made the Founding the differential property of conservatives. In part, this is a matter of the substantive political values that Miranda’s protagonist represents, both on the structural issue of federal power and on currently salient social issues like immigration. But Hamilton’s larger enterprise is exploding the politics of racial memory that have, in recent decades, made liberals queasy about embracing the Founding too closely. On that score, Hamilton attempts nothing less than regime change. Not in the sense of replacing the president with a different president, but in altering the way that Americans—of all races—think about the identity of the republic.
The show takes barely 30 seconds to establish its perspective on this issue. In the opening sequence, half a dozen nonwhite rappers take turns contributing verses to an introduction of the title character. The third rapper in the series, describing Hamilton’s adolescence in the West Indies, speaks these words:
And every day
while slaves
were being slaughtered and carted/
Away
across the waves,
he struggled and kept his guard up/
Inside, he was longin’ for somethin’ to be a part of/
The brother was ready to beg, steal, borrow, or barter.
Americans have told innumerable stories about the Framers that marginalize or omit slavery. Americans have also told many stories about the Founding that seek to take slavery seriously. Hamilton does something new. The same African-American actor who announces, in the play’s first minute, that this story will neither hide slavery nor deny its brutality also refers immediately to the white-man title character as a “brother.” Hamilton, announces the nonwhite cast communicating in a paradigmatically nonwhite genre, was one of us. Not because of some bizarre claim that the first treasury secretary was actually not a white man. But because we see him as ours. (The next rapper calls Hamilton “our man.”) In full knowledge that Hamilton’s race differentiated him from the slaves being slaughtered and carted away, the cast uses racially laden terms of identification to describe its connection to the story’s protagonist. Our race matters, the company implicitly declares. It shapes how we tell this story. But there is no hint that the historical Hamilton’s race matters, one way or the other.
In the theater, the brothering of Alexander Hamilton is all the more effective because the audience watching it happen does not yet know the performers as individual characters. By the end of the evening, these initial rappers will be Washington, Madison, the Marquis de Lafayette, Hamilton’s wife, Eliza, and son, Phillip—and Aaron Burr. But in the opening sequence, the people on stage have not yet resolved into determinate historical figures. They are still actors, dressed in period costume but operating in the present, addressing their 21st-century audience directly. The audience sees a company of modern Americans—mostly African-American, and entirely nonwhite—rapping out an origin myth for the $10 Founding Father, who is their brother, even as they invoke the horror of slavery.
The racial politics of this approach are not without risk (or detractors). In Ishmael Reed’s view, for example, for black actors to give sympathetic (if not uncritical) portrayals of slaveholders is an act of betrayal. The accusation could sting, and perhaps more so when one remembers that the show’s writer is Latino and not black. But Hamilton is dedicated to moving past this perspective. It aims to give nonwhite Americans today access to the cultural power of the Founding by showing that black people can own the characters of men who owned black people—and that they can do so without either muting their own blackness or overlooking the evils of the past. Whether it works is partly a question about what 21st-century Americans are ready for and partly a question about how well the maneuver is executed. Again, it matters that Hamilton is compelling as art, including to people who know the art forms well. Whether most African Americans will ultimately react positively to Hamilton will be knowable only down the road, and surely, different African-Americans will react differently. That said, there are some promising early signals: The president and first lady of the United States, two people who speak with some authority and some influence on the subject of African American identity, are all-out fans.
In a similar vein, some critics have written that the show’s focus on white historical characters perpetuates the erasure of nonwhites from early American history. There is something to this criticism. Slavery is a presence throughout the musical—both as a practice and as a subject of argument—but the slaves and other nonwhite characters who appear on stage are mostly a background chorus. The play’s three-dimensional figures were all, historically, white. But Hamilton’s central erasure is not of nonwhite characters; it is of the idea that racial distinction should block nonwhite Americans from directly accessing the cultural authority that comes from identifying with the nation’s already-canonical Founders. It aims to let nonwhites feel ownership of the Founding, not by offering nonwhite historical figures with whom to identify but by creating conditions in which a black American today, as a black American today, can identify with Washington, or Hamilton, or even perhaps with Jefferson, villain though he be.
When it comes to the less-famous characters, the play may even succeed in the remarkable feat of getting the audience to imagine 18th-century white men as black men, perhaps without realizing that they are doing so. When audiences see Okieriete Onaodowan playing Madison, they probably register the thought that the character has been cast cross-racially. Everyone has mental images of Madison before coming to the theater, and those images are not quite so Nigerian. But how many theatergoers have preexisting mental images of Hercules Mulligan, the tailor’s apprentice turned Revolutionary spy, or George Eacker, the man who dueled with Hamilton’s son after trash-talking the former treasury secretary in a Fourth of July address? Those men are blank slates to most people. When Hamilton introduces them, they are black men, and the magic of the show makes it seem plausible that that is who they were.
And who is to say whether what the show does for less-famous characters today is a harbinger of what it, or its successors, will do for Washington and Jefferson in the future? The leading Founders are already figures of myth. That’s precisely what makes them potent in the rhetoric of law and politics. How people imagine mythical historical figures is at least as much a function of their own mental maps as it is a function of dispassionate history. As long as the mental maps of Americans feature deep social cleavages on the basis of race, the historical fact that the Founders were white will figure in citizens’ images of Washington and Jefferson. But in a future America, one that was thoroughly multiracial and egalitarian, a nonwhite image of Washington might be no more jarring than dark-skinned images of Jesus have been among nonwhite Christian populations around the world. At that future juncture, the argument that Hamilton misrepresents the 18th century would be like the argument that originalism is a bad way to make most constitutional decisions. As a matter of intellectual analysis, it’s a pretty good point. But it’s a complex and inconvenient point, and it is unlikely to withstand the power of a good story. Hamilton tells a pretty good story, with thumping good music to help it along. By the time you leave the theater, maybe even Washington is a little bit brown. Or at least, maybe one of the images of Washington residing in your brain is a little bit that way.
So does scrambling prevailing intuitions about race and the Founding in the way that Hamilton does help audiences think accurately and carefully about the lives of nonwhite Americans in the 18th century? Of course not. And if you think that theater has a responsibility to help the public get those kind of historical understandings right, you might conclude that Hamilton’s casting and its use of paradigmatically black musical genres are gimmicks that whitewash historical injustice. But if you think that theater can legitimately play a myth-making role, the required analysis is different. The question is then not whether Hamilton does justice to the past by depicting it accurately but whether Hamilton builds justice in the present by reallocating the ownership of the republic. Broad public absorption of Hamilton’s vision would not replace a false picture of the past with a true picture. It would replace one false picture with a different false picture. In scholarship, that substitution would not be an appropriate aspiration. But in the politics of national identity, the practical alternative to the reigning myth is never a careful historical understanding. It is always some other myth.
The success of Hamilton’s project would mark an inflection point in the politics of American memory. If nonwhite Americans can own the story of the Founding without selling out their racial identities, then the door is open for large numbers of Americans with liberal politics to claim the Founders as their own. In part, that is simply because the median nonwhite voter is to the left of the American political center. But perhaps just as important is the effect on white liberals, whose ability to embrace the Founders enthusiastically has been tempered in recent decades by the fear that one cannot celebrate those dead white men without risking complicity in the continued marginalization of nonwhites. For the generations that revered Marshall, a responsible perspective on the Founding had to show critical distance. But if Miranda’s frame replaces Marshall’s, or even just competes with it, then white liberals can be less ambivalent. Surely white liberals can lay as much claim to the Founders as their nonwhite allies do.
As already noted, Hamilton also demonstrates that the story of the Founding can be told from a liberal perspective on a range of issues other than the core concern with race. The particular Founding Father whom Miranda’s musical elevates was an immigrant, a city-dweller, and a passionate supporter of strong central authority in the national government. The musical emphasizes all of these aspects of Hamilton’s character. To be sure, Hamilton takes some politically motivated liberties with the historical record. The historical Hamilton’s antislavery attitudes were real, but they are, shall we say, accentuated in the musical. Similarly, the label “immigrant” is repeatedly used to describe not just Hamilton but also the Marquis de Lafayette (who is one heck of a good rapper in his second language). But of course Lafayette was never an immigrant. He was just a foreigner, a well-born Frenchman who fought the British without ever intending to settle in America. The musical also cuts any number of historical corners in the service of dramatic tension, character development, or narrative simplicity. In short, Hamilton is a piece of musical theater, not an article in the Journal of American History. But as musical theater goes, Hamilton is pretty well steeped in its historical sources. And a good musical can shape views of its subject matter, even when audiences ought to know that they are watching an exercise in myth making. Everyone who ever saw Fiddler on the Roof knows that Tevye and his daughters are fictional characters, but Annatevka is the culture’s go-to image of Jewish life in Eastern Europe, and later stories about that time and place seem plausible or jarring in part based on whether they conform to the expectations that that set of images created. Similarly, everyone who sees Hamilton knows that Washington’s Cabinet secretaries did not rap-battle the issue of the National Bank. But Hamilton’s version of the Founding story will nonetheless creep into the consciousness of a large group of Americans.
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. That sense of connection and ownership will be more significant than Hamilton’s raising the profile of any particular Founder or reorienting public intuitions about how the Founders saw any particular issue. The point, in other words, is not that constitutional law will on all issues come to track the views that the historical Hamilton actually held in the 18th century—many of which play no role in the musical, and some of which modern liberals might dislike. 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.
To be sure, Hamilton’s reframing is not so powerful that it will convince people with conservative political principles that the Framers of the Constitution were liberals. But it doesn’t need to. The relevant question is whether Hamilton can persuade people with liberal politics that the Framers have their backs and to tell the tale accordingly. It can. Partly because the show is so good, and partly because the target audience will be happy to be receptive. Hamilton is beyond compelling as art: people who hear the music once want to hear it again and again and to hum it walking down the street. It will live in the audience’s brain. And American liberals are not going to expend too much effort fighting the revised myth they are being offered. Deep down, most liberals want to claim the mantle of the Founders just as much as most conservatives do. It is nice to have Washington on your side.
The liberal originalism of the future will not rest on one rap opera alone. Cultural change has many inputs. Hamilton plays a role and so do the other things in the environment that made Hamilton possible. The sheer fact of the Obama presidency helps nurture the intuition that nonwhite Americans are full owners of the republic, thus opening a door for Miranda to walk through. Downstream, Hamilton will mix with other influences, some of which it will have directly nurtured and some of which might have arisen independently. The combined effect will be transformative. America is becoming a socially and demographically different country from the one in which the Warren Court and its critics clashed. Miranda is helping that future bring its origin story along with it. And in the field of constitutional law, originalism will keep the present connected to the republic’s Founding by making sure that the Founding adapts.
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Six months after Hamilton opened on Broadway, Justice Scalia died at age 79. In Scalia’s generation, when originalism was mostly a conservative art form, Scalia was the maestro. The struggle over his succession is often described by those who revered him as a struggle to ensure that originalism lives on. But the real problem confronting conservatives is not that a Supreme Court with a Democratic-appointed majority would end the practice of originalism. It is that originalism in liberal hands is likely to produce liberal constitutional law, just as originalism in conservative hands has produced conservative constitutional law.
So the future of constitutional law may now be the resultant vector of two very different pieces of performance art: a hip-hop Broadway musical and a reality-TV presidential campaign that might yet play as either tragedy or farce. After all, liberal readiness to reappropriate the Founding would be of limited consequence in constitutional law so long as the Supreme Court remained solidly conservative. Innovative arguments rarely persuade the High Court that it is bound to make new law in some direction where it is not inclined to go. Innovative arguments matter more when a Court would like to go in some new direction but doubts that the law, properly understood, permits it to do so. It is naïve to think that justices are not animated by their individual viewpoints, but it is flatly wrong to think that they simply do whatever they want, regardless of preexisting legal authority. Justices usually need to feel that the law gives them permission to do what they do; the differences in their worldviews and temperaments show up as different interpretations of what permission the law has given. And it is the function of good constitutional advocates—the lawyers who file briefs and the commentators who shape the broader discourse—to read the authorities in ways that justices who would like to get to a certain result can accept, in good conscience, as giving them permission to do the right thing.
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. If Merrick Garland (or some other Democratic nominee) succeeds Scalia, the personnel will be in place. 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.