Original Intent and the Constitution

[andyfox]

No evidence whatsoever exists to show what the framers of the Consitution meant or expected future generations of Americans to construe the Constitution as they, the original framers, had. Nor is there any evidence to show that they expected the future to be bound by the past.

The Constitution obligated the courts to expound on its meaning. Hamilton wrote in Federalist #22 that the "true import" must "be ascertained by judicial determination."

There are many parts of the Constitution that are cleraly and carefully worded in detail. There are many parts that are vague. Those phrases that are open-ended are that way deliberately.

The imprecision of the text of the Constitution's litigated provisions makes "strict construction" a ridiculous idea. It is impossible to strictly consture something which is ambiguous. If the gentlemen at the Constitutional COnvention had wsnted their country to understand their "original intent," they would have had a stenographer there to keep an accurate and official record of what took place, and they would have published it. As it was, Madison's notes on the convention were not published until 1840. Madison himself never justified any decisions he made in his long public life on the "original intent" of the framers.

Strict constructionism is a misnomer at best, a sham political manuever most of the time.

[brad]

very true as far as procedure of government.

however the philosophy, that governments are instituted among men to secure their unalienable rights, rights which do not come from government, that is precisely what is being lost in this modern day crap.

[MMMMMM]

andy, what you say regarding original intent may be so, but that then raises the question of whether various specific parts are ambiguous or clear. If people can't even agree on whether a part (say an amendment) is ambiguous or clear, then what??? The default position in such cases may be quite important.

[MMMMMM]

^

[MMMMMM]

No time to comment on this article now except to say that it starts off slow but by the end the author has made some very good points.

http://www.nationalreview.com/goldberg/goldberg070803.asp

[Zeno]

Brad (and everyone else),

Article IX of the "The Bill of Rights" (the first 10 amendments):

The enumeration in the constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Article X:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States, or to the people.

Emphasis added.

Now let’s all figure out exactly what the above two Articles mean. What it means of course is that Andy's line of argument is correct. The original intent was not to have a rigid original intent, except in those subjects that are explicitly enumerated in the constitution. And even some of those have some ambiguity written in.

For example, under Article I, section 9:

No money shall be drawn from the Treasury, but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.

Some statements are very rigid. For example, under the same section this is stated:

No bill of attainder or ex post facto law shall be passed.

Or this:

No tax or duty shall be laid on articles exported from any state.

In another part of the constitution it is stated that you must be a natural born citizen of the United States, at least 35 years of age, and been a resident for at least 14 years, to be eligible for the office of President. No other qualification is stated. Morons are not excluded, which is why Reagan was allowed to be President.

‘nuff said, Methinks.

-Zeno

[MMMMMM]

Even should you be completely right, I don't quite think that means it's "nuff said." Here's why:

As long as the judicial branch properly recognizes where things are clear or ambiguous, and proceeds accordingly, I don't think we have a problem. However if and when the US Supreme Court oversteps its authority and in effect begins to legislate, I do think we have a problem.

The US Supreme Court is supposed to correctly interpret the Constitution within a legal context, not invent it. I think the recent Supreme Court decision headed by O'Connor is an example of error, in that the decision clearly went against the 14th Amendment in that it denied certain persons equal protection under the law rather than ensured equal protection under the law, as the 14th Amendment clearly requires.

When temporary goals become more important than guaranteed rights, we are sliding into the danger zone. So too are we heading in a dangerous direction when the judicicial branch in effect begins to usurp the role of the legislative branch.

The idea of interpreting the Constitution with flexibility is fine, where it is ambiguously written. Where it is not ambiguously written, the only thing that is fine is either to interpret it as it is written and act accordingly, or to take proper steps to amend it if truly necessary.

Also, equal protection under the law is a particularly important concept. While far from the here and now, perhaps, look what happened in Germany after Jews were denied equal protection under the law. It is probably one of the most important rights guaranteed by the Constitution. And rights don't usually disappear all at once; it is a process which can insidiously accelerate once it begins.

[Zeno]

M,

My "'nuff said" was alluding to my sarcastic joke about Reagan, not my entire post. This is probably unclear and is my fault.

And I agree that there is difficulty in the Supreme Court interpreting the constitution. Some of this goes all the way back to Marbury vs. Madison (1803) in which the Supreme Court (John Marshall really) essentially established the principle of judicial review (ruling an act of congress unconstitional). Jefferson always insisted that the Supreme Court did not have this power, that the Supreme Court itself was in fact being unconstitutional in making this ruling. And then that leads us to interpreting the constitution and then it goes on and on and………..

But I think some of the ambiguity leads to flexibility and that in turn gives the document an added strength, not weakness, at least in the long run. Short term abuses can and will occur, as our history as show.

-Zeno

[MMMMMM]

err...guess the 'nuff said being related to the Reagan joke went over my head;-)

I agree that genuine ambiguity, where present, probably does give some good flexibility. Also I suspect some such ambiguities were intentionally written that way.

I only have a problem with clear parts being treated as if they were ambiguous, or being flouted entirely. There I have a very big problem, and I think others would be wise to share in this concern.

[andyfox]

There are parts that are crystal clear and parts that are clearly ambiguous. And there are parts that are clear yet clearly wrong.

The Constitution, for example, clearly describes the three branches of government but waffles when describing some prohibitions, powers and rights.

An example of a clearly wrong part would be the 6th Amendment in which is say that "in all criminal prosecutions, the accused shall enjoy the right ot a speedy and public trial, by an impartial jury . . ." "All" is an absolute. Yet the framers did not intend to extend the right to trial by jury to persons accused of petty misdemeanors.

[MMMMMM]

Or maybe petty misdemeanors were not in that day considered criminal offenses. Not that I know one way or the other.

[brad]

'Now let’s all figure out exactly what the above two Articles mean. What it means of course is that Andy's line of argument is correct. '

totally incorrect. shows your lack of education.

9th and 10th were insisted upon so federal government couldnt say, 'thats all folks', if it aint in the bill of rights, you aint got em. (going for states as well as individuals)

i mean thats very clear and on the record.

geez you guys act like constitution came from god himself no one knows the reasons for anything, just take it at face value or interpret it /images/graemlins/smile.gif

[andyfox]

I don't think nobody knows anything. But I do think those who say they know the "original intent" do not. They are either mistaken or they are duplicitous.

One of the biggest complaints the anti-federalists had about the proposed Consitution was that it was too vague.

[brad]

'They are either mistaken or they are duplicitous.'

cant argue with that /images/graemlins/smile.gif

the main point though is that we dont really follow the constitution anyway.

a) any declaration of war (as required in const.) ?

b) all federal powers are spelled out. where is dept. of education or redistribution of wealth powers given to central gov?

[adios]

You should define "strict constructionism" as I can't find it anywhere.

[adios]

"I don't think nobody knows anything. But I do think those who say they know the "original intent" do not. They are either mistaken or they are duplicitous."

That's silly, it's a vacuous statement. We don't know that the intent of the Constitution was to establish a framework if you will for government? We may not the intent of every sentence but we certainly can discern the intent of many portions of it.

[Wake up CALL]

"No evidence whatsoever exists to show what the framers of the Consitution meant or expected future generations of Americans to construe the Constitution as they, the original framers, had."

Oh really? How about the fact that they wrote it all down? Don't you think that gives the "intent" position a little merit? Otherwise why didn't they just write a bunch of poetry or recipes? I think you are prety far offbase here Mr. Fox.

[andyfox]

When people (for example, William Rehnquist or Robert Bork) utilize the phrase "original intent," they are criticizing what they see as liberal policies that the Constitution does not, in their eyes, call for. But the clauses in the Constitution that they are referring to are vague, and deliberately so. The framers could, and did, use precise, careful language where they chose to. Where they did not, it was their intention not to. The portions of the Constitution that establish the framework for the government, as you say, are indeed clear. Other portions are not, as you have pointed out.

[andyfox]

They did not write it all down. They expressly prohibited it from being written down. There was no official documentation of the deliberations of the Convention. Madison's notes were not published until fifty years after the Convention.

"No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection law. . . "

"Absolutely necessary" seem pretty carefully chosen words to me. They could have just said "necessary." Compare this, or the detailed treason clause withthe brief free press clause. Why precision in some cases and generalities in others? They were evidently content merely to endorse the principle of a free press, while governing the subjects or treason and state imposts as precisely as possible.

Poetry, no. Recipes, yes. The framers accepted the advice of Edmund Randolph and kept the Constitution focused on "essential principles . . .which ought to be accomodated [sic] to times and events." One can argue if they ought to have done this or not, but not the fact that they did.

[andyfox]

Not going beyond the plain meaning and intent of the words of the Constitution.