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Original Intent And The Constitution.
Part of the "Critiques of Libertarianism" site.
Last updated 12/05/01.
This is the beginning of a page on the problems with ideas of "Original Intent" of the founders, a conservative propaganda ploy much favored by libertarians.
This first segment is taken from A Process of Denial: Bork and Post-Modern Conservatism by James Boyle. A delightful review, it traces the pattern of intellectual development of Judge Bork through libertarianism and beyond to other foolish notions.
The better known variant of originalism, and the one that Mr. Bork first adopted and held as recently as 1986, was the philosophy of original intent. The Constitution means what the Framers (or perhaps the Framers and ratifiers) meant it to. This is also the most influential version -- the judicial philosophy championed by recent Attornies General. But if the philosophy of original intent is the most popular version, it is also the easiest to blow out of the water. Listing the arguments against it is the kind of arduous, lengthy and repetitive task which Victorians believed suitable for the rehabilitation of convicts. I undertake it here in the hope of acquiring virtue.
First, the idea that the intention of the original author must govern the
meaning of the text is simply not true as either a practical or a philosophical
matter. Actually, in both law and life we use lots of different interpretive
criteria to establish what something "means."
Second, even if original intent was the preferred method, there is strong historical evidence that the intention of the Framers was that their intentions should not bind future generations. Original intent tells us to obey the Framers and the Framers said, "our intention shouldn't govern."
Third, even if original intent wasn't philosophically and historically bankrupt, the records we do have of the Framer's original intent indicate that it is either contradictory or indeterminate. Sometimes both. Since the proponents of original intent argue that we must embrace their method or else admit that the Constitution could mean anything, it is bizarre to find that his method itself is no more than a judicial Rohrsach blot.
Fourth, in those few areas where original intent is clear, it is sometimes morally outrageous. Any protagonist of original intent must confront the question of whether or not, as a moral matter, we can responsibly allow the intentions of men, some of whom believed ardently in slavery and almost all of whom believed in the innate inferiority of women, to govern current constitutional interpretation.
Fifth, to adopt original intent as the supreme method of constitutional interpretation flies in the face of most of the Supreme Court's jurisprudence, the vast majority of scholarly writing, the opinions of most constitutional historians and, probably the majority of the American people. It also raises impossible questions of transition from our current constitutional arrangements. As Mr. Bork once put it, "[t]his Nation has grown up in ways that do not comport with the intentions of the people who wrote the Constitution -- the commerce clause is one example -- and it is simply too late to go back and tear that up. I cite to you the legal tender cases. These are extreme examples admittedly. Scholarship suggests that the Framers intended to prohibit paper money. Any judge who thought today he would go back to the original intent really ought to be accompanied by a guardian rather than be sitting on a bench."
To sum up, original intent is a philosophically incoherent method which appears to contradict the Framers own intentions. It is sometimes morally objectionable, sometimes indeterminate, flies in the face of precedent and scholarship and raises insuperable problems of practical implementation.