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‘Original intent’ a Ouija board approach

As we once more undergo the national trauma of a Supreme Court confirmation hearing, trusting that calm reason and impartial justice will be the end product of all-out partisan warfare, we’re again hearing a great deal about the original intent of the Framers of the Constitution.

The original intent school of constitutional interpretation is associated with conservative politics because the late Justice Antonin Scalia talked about it so often. But Scalia was originalism’s popularizer, not its originator.

Its fullest articulation dates all the way back to 1856, eighty years before Scalia’s birth. If you’ve read anything at all about the Dred Scott case, you’ll have learned that Chief Justice Roger Taney wrote that slaves and their descendants “had no rights which the white man was bound to respect.” But note the past tense. He wasn’t giving his opinion. He was describing the intent of the Framers.

He continued: “No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.” That’s the original intent school of interpretation in a nutshell.

Regardless of its repugnant origins, originalism is employed by liberal justices, too. (Check out Justice Stephen Breyer in Giles v. California.) That’s because it’s useful. Inferring the Framer’s original intent allows justices of all ideological shades to provide constitutional answers to questions the Constitution itself doesn’t address. After all, if the Constitution actually said, “ABC,” it wouldn’t be necessary for anyone to root around in historical records for evidence that the Framers intended ABC.

Better yet, it deflects criticism. If you don’t like ABC, well, don’t complain to me. Take it up with the Framers.

Supreme Court confirmation hearings have become unedifying political spectacles because the stakes are so high. The stakes are so high because the Supreme Court plays a dominant role in our political life. The Supreme Court plays that dominant role because it’s the ultimate interpreter of the Constitution. So it’s worth asking, who were the Framers whose original intentions our justices turn into law?

That turns out to be a tricky question.

As a kid, I was schooled in the Miracle at Philadelphia tradition of constitutional veneration. I can’t remember if my teachers explicitly told us those men in knee breeches and powdered wigs were divinely inspired, but that was definitely the impression I formed.

Not until I was grown did I learn about William Lloyd Garrison, the great abolitionist, who burned his copy of the Constitution on a stage in 1854, denouncing it as “a Covenant with Death, an Agreement with Hell.”

Now I’m inclined to a view between those extremes. The original Constitution was a wobbly political compromise, neither divine nor diabolical. The compromise held the new nation together for just 72 years.

After the Civil War, the Constitution underwent a drastic overhaul. The government we live under today is in fundamental respects a product of the 13th, 14th and 15th amendments. Once the federal courts began enforcing them (it took awhile), modern America was born.

All three Reconstruction amendments altered the relationship between the federal government and the states. The Bill of Rights, ratified in 1791, originally applied only to the federal government. The 14th Amendment, ratified in 1868, made it enforceable against the states, too. So whose original intent should govern its interpretation, the Federalists of 1791 or the Radical Republicans of 1868?

Some of our most inspiring Founding Fathers were absent from the constitutional convention. John Adams and Thomas Jefferson, for instance, were in Europe. Instead, the convention was stuffed with slaveowners from the South. When Garrison burned the Constitution, he was specifically denouncing their original intent. We had a whole Civil War to erase their influence. Why would we want to bring it back? But if we don’t, we’re just picking and choosing whose original intent we like, which defeats the whole point of the exercise.

Then, too, the Constitution speaks in the voice of “we the people,” not “we the drafters of this document.” It acquired legal force only when ratified. So we really should be talking about the original intent of the delegates at the 13 state ratifying conventions.

And don’t get me started on the justices’ cherry-picking of historical sources.

Original intent is the Ouija board of constitutional interpretation. It answers every question the justices ask of it. But somehow, curiously enough, it always provides an answer that confirms the prior beliefs of the justice invoking it.



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