The political-economic-social-religious right has many plausible sounding propaganda slogans. The claim that some judges, usually called “conservative” though many are in fact reactionary, can read the Constitution’s tea leaves has been completely demolished by many, including the Framers who wrote it. An excellent starting point is Leonard W. Levy’s “Original Intent and the Framer’s Constitution.”
Pulitzer Prize-winning Levy uses specific quotes from various Framers, analysis by respected scholars, and insights from judges to definitively show what a farce the entire “original intent” argument really is.
Former West Virginia Chief Justice Richard Neely said people who take seriously the Supreme Court’s “historical scholarship as applied to the Constitution also probably believe in the Tooth Fairy and the Easter Bunny.” Levy quotes “sophisticated conservative” United States Court of Appeals Judge Richard A. Posner from his article, “What Am I? APotted Plant?” repudiating the belief constitutional judges should speak the Framers’ mind: “There has never been a time when the courts of the United States, state or federal behaved consistently in accordance with this idea. Nor should they.”
In light of the 24/7 propaganda war of disinformation, perhaps revisiting George Orwoll’s “1984” slogan of the Party: “Who controls the past controls the future; who controls the present controls the past,” will be quite helpful in understanding the supposed theory of “original intent.” See it as a clever trick to control the narrative.
As Levy says, a peculiar charm of “original intent” is that the judge employing it SEEMS to escape subjectivity. The judge, supposedly, becomes an impersonal time traveler who merely reports what the Framers supposedly intended. “Thus, an originalist judge supposedly rises above criticism if he is nothing but an intermediary for transmitting and applying the wishes of the Framers.” A masterful trump card stroke – who would dare be guilt of criticizing James Madison, Thomas Jefferson, George Washington, Benjamin Franklin, et all? Original intent is a form of name dropping, nothing more.
The Revolutionary Era generation revolted first against a corporation – the Boston Tea Party. The main evolution was against the British king. Throughout this era there was a consistent, publicly announced, desire to eliminate any type of theocracy, an official state church, thus “no law respecting an establishment of religion” in the First Amendment. The common theme: human dignity, respect for the individual rights of man. They said this over and over again: “We hold these truths to be self-evident;” these rights “are born with us:” “written as with a sunbeam..by the hand of the divinity itself..” It is commonly accepted that when the Supreme Court has failed worst, it has failed to respect human dignity – Dred Scott, Plessy-v-Ferguson, Korematsu… One does not need a book to stand for human dignity. That comes from wisdom and compassion. The legal school of thought embodied by “Original intent” doesn’t care about human dignity. One judge practicing it has said: “That wasn’t my job.” The very essence the real “Original Intent” of the 1770-1792 generation was human dignity. The opposition to the Constitution demanded this be written, so the Bill of Rights was added to guarantee it. Simple Justice.
Consider this – the Framers, the geniuses who wrote the Constitution and Bill of Rights, often, and repeatedly, argued among themselves – in the 1790’s, within 10 years of creating it – over what they had written meant! If the creators are arguing over their own “original intent,” how can anybody, in 2018, be saying THEY “know” it??? Levy relates during a 1791 Congressional debate, John Vining {Del] “summarily dismissed original intent” as the “opinion” of 1787, which he felt had become obsolete, “not a sufficient authority..for Congress at the present time to construe the Constitution.”
This is not an isolated incident. Albert Gallatin [Pa], in 1796 felt the only opinions about the meaning of the Constitution that he accepted were those of the members of the state ratifying conventions who favored ratification. because they alone, acting on behalf of the people, adopted the Constitution, and so “their intentions alone might, with any degree of propriety, be resorted to.” Madison often voiced a similar opinion.
But, as Levy relates, there is a problem with what was actually said, not only in 1787 Philadelphia, but also in the various state conventions. Madison’s Notes are considered the most reliable account of 1787 Philadelphia activities. But, by word count, Levy calculates that Madison probably had between 20-50% of what was said. Another source was “butchered>” State summaries were not only unreliable, but in some cases “doctored.” Bill of Rights records were often non-existent; sometimes “imaginative.” including things not said. Some of the identities of men involved are unknown
Levy notes the Framers’ “genius for studied imprecision and calculated ambiguity,” illustrating his point with several pages of ambiguities and “inappropriate specificity” – absurd literal readings – in the Constitution’s text. Levy lists as a partial beginning half a page of questions like: “What is the meaning of infamous crimes” in the Fifth Amendment? Then there is the matter that is perhaps the “definitive statement on a constitutional jurisprudence of original intent was made by Chief Justice Roger B. Taney in the Dred Scott case…”
Along those lines it is interesting that the primary users and pushers of “Original intent” are coming from only one part of the political-economc-social-religious spectrum. The primary “accusation” is that some judges are accused of being unethical and “unconstitutional” in their “judicial activism.” And, not coincidentally, say figures on the right side, these offenders have been guilty of center-left “activist” revisions of what the Framers intended.
These charges ignore the documented historical truth that “judicial activism” has been practiced from America’s beginning. It also ignores Supreme Court history. Most Supreme Courts would be labeled “conservative” at best, reactionary [Dred Scott, Korematsu] in many major decisions. Also of interest, in the last 50 years, a series of “conservative” regimes have labeled themselves “law and order” governments. Problematic with that is th fact that the Nixon, Reagan, Bush II, Trump regimes have engaged in a large amount of dubious, even criminal behavior. To say the least, it appears quite odd that “law and order” regimes also insist on appointing “original intent” judges. Then, when court decisions lean largely in one direction [by numerical count] ideologically, questions naturally arise. This is further troubling when the logic quoted behind decisions doesn’t square with known Framers’ goals and beliefs. Questions naturally arise about the “original intent” scholarship that supposedly justified decisions.
If we take “original intent”literally, then America will be forever governed by 1787 thinking, no matter how America and the world change. Therefore, modern technology like the internet will be governed by 1787 legal principles. When robots become ubiquitous, how does the court rule when your robot injures my robot? Is a robot a “person” or a “thing?” Where does one find “robot-type thing/person in the Constitution? Would the robot be subject to “cruel and unusual punishment if we unplugged him?
The Virginia Chief Justice had n answer, 6/l4/1788: “May we not in the progress of things, discover some great and important (right), which we don’t now think of? In 1920, Justice Oliver Wendell Holmes: ” when we are dealing with words that are also a constituent act, like the Constitution of the United States we must realize that they have called into life a being the development of which could NOT HAVE BEEN FORESEEN completely by the most gifted of its begetters..The case before us must be considered in the light of OUR WHOLE EXPERIENCE and NOT merely in the light of WHAT WAS SAID A HUNDRED YEARS AGO.. We must CONSIDER WHAT THE COUNTRY HAS BECOME.”
Levy points out that: “Words of crucial importance in constitutional law are not even in the Constitution, including fair trial, executive agreement, beyond reasonable doubt, the spending power, clear and present danger, cross-examination, separation of church and state, war powers.. presumption of innocence..equal justice, the right to privacy, the right to travel, the right to silence..strict scrutiny, interstate commerce..” All these rights now understood, have been added since 1787. Life, and the law without them would be unthinkable.
Alexander Hamilton, in 1775: “the sacred rights of mankind are not to be rummaged among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of the divinity itself..” In 1766, John Dickinson said, speaking of “the rights essential to happiness,” We claim them from a higher source – from the King of Kings..They are born with us.. they are founded on the immutable maxims of reason and justice. This echoes “We hold these truths to be self-evident..”
If America is forever frozen in 1787, then we might ask if this is so, why is the process of adding amendments to the Constitution embedded init? Since Article V says no amendments before 1808 – thus the Framers were plainly saying future changes, unexpected, could be added. They are plainly saying, their “original intent” could be changed, modified, even eliminated.
So…what would we have if we could collectively build a Supreme Court justice from nothing? What characteristics would we like to have? If we’re giving lifetime tenure to a person, what expectations should America have, deserve??
Judge Learned Hand believed these people should be broadly educated in history, literature, and philosophy. Because “everything turns upon the spirit in which he approaches the questions before him.”…the spirit in which he approaches issues..”
Judge Felix Frankfurter: “the words of the Constitution on which their solution is based are so unrestricted by their intrinsic meaning or by their history or by tradition or by prior decisions that they leave the individual Justice free, if they indeed do not compel him, to gather meaning, not from reading the Constitution, but from reading life.”… compelled to gather meaning by reading life…
President Teddy Roosevelt: “.. their whole training and aloofness of their position on the bench prevent them from having, as a rule, any real knowledge of, or understanding sympathy with, the lives and needs of the ordinary hard-working toiler.”….real knowledge and sympathy for ordinary people….
Adlai Stevenson: “Knowledge alone is not enough. It must be leavened with magnanimity before it becomes wisdom.” …knowledge without magnanimity is not enough…..
We’re left to wonder…Did King Solomon rely on “original intent” when he threatened to split the disputed baby in half? Or…. had he learned from reading the book of life?
With Justice For All 