Would Ms. Fredrickson go to President Kennedy
and say , "We've had lots of changes from your day to ours, like the internet and ipods, so we're going to ignore the whole intent of the Civil Rights act of 1964
"? Laws are published in two formats: non annotated and annotated. Non annotated means that only the text of the law is published. Annotated (get the definition here) means that both the text and the legislative intent of law are published. This helps judges decide cases; they will refer back to the legislative intent follow that.
Who would invalidate the intent of a law by fiat just because of some new cultural change? We really don't do that. We just pass a new law changing the old one. So why would we say the intent of the Constitution didn't matter?
What about the bit in the Constitution about slavery? Did Abraham Lincoln
suddenly decide to act as though slavery wasn't legal?What about the prohibition on direct or income taxes
? Did Woodrow Wilson
suddenly instruct federal tax collectors to start collecting taxes on people's income?What about Prohibition
and the subsequent repeal? There was nothing in the Constitution about that originally.Or what about the Suffrage
movement? Women were not given the right to vote in the Constitution. Did the sudden advent of motor cars and the phonograph mean that we could interpret the Constitution to give Women the right to vote?And suffrage for 18 year-olds? Did the cultural revolution in the 60's suddenly mean that 18 year olds could be given the vote as well?
As you probably guessed, the answer to each of these questions is no. In order to deal with each and every one of these momentous issues we had to add a Constitutional Amendment. The Framers
were smart enough to know that culture, technology, and the world all change, but that human nature doesn't. They build the amendment process into the Constitution to allow for changes and to make those changes difficult. This protects us from "light and transient" whims and, more importantly, from the tyrannical nature of almost all governments. Michele Bachmann is promoting the originalist interpretation because most people only know the "comprehensive" interpretation.
Pretending that the Constitution doesn't mean what it says is just another way for politicians and the media to clamor for and grab more governmental power and control - the exact opposite of what the Framers intended.
I don't intend to defend Frederickson, because I know little about her. But I'm wary of a "Founder's Intent" reading of the Constitution, mainly for the reason that the Founders did not act as a single body. There was no single "Founder's Intent"; instead, there were many intents of many founders. (The most obvious example is the infamous General Welfare clause, the meaning of which the founders argued about before, during and after it was ratified.)
ReplyDeleteI'm not saying we should dismiss the founder's words--far from it--but to pretend that there is such a thing as a concrete, black-and-white "originalist interpretation" is to ignore the facts. Most people who claim such a thing tend to cherrypick individual founders with whom they agree, and ignore the dissenters.
The "general welfare" clause wasn't ever debated as a part of the Constitution to grant powers. It was inserted after the Constitution was ratified by the Committee on Style. It functions more or less as a thesis statement, and not a charter of powers given to Congress.
ReplyDeleteAnd we do have a pretty good idea of what was intended by what was passed in the Constitutional Convention. There are extensive notes taken about the debates and what was and was not considered valid. (Consource.org has a great collection of this material). And those types of records have been used in Supreme Court Cases, like D.C. versus Heller (http://v1.consource.org/index.asp?bid=541&stid=4).
You must be forgetting that I also have my polisci degree and have read all those notes as well--and they most certainly do not present a unified body of founders with a single intent. I'm not saying they're useless information that we should ignore; on the contrary, they're important to a comprehensive understanding of the constitution. (I know you don't like that term--I threw it in just for you.) :)
ReplyDeleteAs for the general welfare clause not being debated, this is exactly the problem with your founder's intent theory. You're essentially saying this: "I know that the constitution says X, but that's not what the constitution means. I know this because some, but not all, of the founders disagreed with that interpretation." Didn't your post above complain about "Pretending that the Constitution doesn't mean what it says"? Did you mean to say "Pretending the Constitution doesn't mean what it said prior to the Committee on Style"?
It is not the reliance on Founder's writings that bothers me. It's that proponents of this originalist interpretation seem to find black-and-white obviousness where there is none.
Let me ask this: if the Constitution can be understood completely via founders intent, by reliance on their writings whenever questions arise, then why did the founders create an entire branch of government (the judiciary) to resolve disputes about the meaning and application of the document? Or were they well aware that things weren't crystal clear?
That's the heart of my complaint: founders intent is well and good, but it's not a Magic 8 Ball that can answer every question. It's a fine starting point, but far far from infallible.
Sure, the original intent isn't always clear, perfect, or easy to define. It does exist and is far more pertinent to discussions about the Constitution than most Constitutional dialogues are admitting.
ReplyDeleteTo answer your question where do the courts look when they have to make Constitutional decisions?
The "General Welfare" Clause wasn't added to the Constitution until after the Constitution was voted on and passed by the convention. That clause wasn't ever voted on as conferring of powers to legislate.
(First, I must apologize for the tone of the previous comment. When commenting online I turn into a jerk. I'll rein it in.)
ReplyDeleteI must admit some confusion with your recent comment.
First of all, you're absolutely correct that the specific words "general welfare" do not appear until after the Committee of Style added them. This does not mean, as you implied in your first response, that the concept was never debated. It was absolutely debated by those who were arguing for a strong centralized government. Those specific words may not be in the original drafts, but are you really saying no one in the convention argued for strong national power?
As for your more recent response, where you say that the general welfare clause "wasn't added until after the Constitution was voted on and passed by the convention", that's just not true. The draft by the Committee on Style was presented on Sept 12, and the final vote on the Constitution as a whole was on Sept 15. And the convention made many changes to the Committee on Style's draft before it was approved and signed.
And then there's the issue of ratification. The states ratified the Constitution, which is arguably more important than the vote from the Constitutional Convention--and ratification all happened AFTER the clause was added (and without the benefit of the convention notes, which were sealed).
And during the ratification process it was claimed more than once that the general welfare clause actually meant more than a thesis statement. So, when the states were decided whether or not to ratify, they were taking, first and foremost, a literalist interpretation, and second, they were looking at the conflicting opinions of the writers.
Again, my intent is not to defend or attack the general welfare clause. My intent is merely to say: the founders disagreed with each other all the time. To take an originalist approach--AND ONLY an originalist approach (as you argued for in the post)--simply doesn't make sense.
Unless you can truly say that the Founders agreed with each other completely on every important issue, then a Founder's Intent argument is silly. It's a good place to start when trying to understand the Constitution, but hardly a source of ultimate truth.
So disagreement prior to passage invalidates intent? If that is the case then why do we publish the annotated code?
ReplyDelete