From: rickertj@athena.cas.vanderbilt.edu (John Rickert)
Subject: Re: In regard to Original Intent Analysis
Organization: Vanderbilt University Mathematics Department
Distribution: world 
Date: Sat, 10 Oct 1992 22:35:10 GMT

    (This is a reply to William December Starr's post referenced above.)

    I hope that I may take the liberty of capsulizing the three points
on which you considered the doctrine of original intent to be unreliable,
since I am afraid this post would be much too long if I were to include
extensive quotations from the post.  Please do let me know if I misrepresent
or misunderstand your points.

1. The difficulty of determining original intent.  The difficulties involved
can certainly be immense, but they are nevertheless surmountable in the
vast majority of cases.  In the case of the Federal Constitution of 1787,
we do have The Federalist Papers.  While it is true that these were written
by only three men and not the whole constitutional convention, they argue
so copiously and reasonably for ratification of the constitution that they
go a long way in determining the original intent of the document.  The
ratification debates, the arguments for and against, also help to elucidate
what the legislators intended.  Moreover, newspaper and magazine accounts
help to give a good idea what was meant.  Personal letters and memoirs
also can help in surmising what was intended.  And, finally, there is the
guiding hand of custom.  Of itself, custom cannot say what the law means,
but it can corroborate the sense acquired from written sources.

    Thus, there is a large body, in most instances, of ancillary literature
for reasonable exegesis of the law.  It should be stressed that no claim
to perfect exactness is being made here.  Legal questions have become
so refined or are so novel (e.g., because of technological innovations)
that all relevant sources may be of no direct avail in the case at hand.
In that event, reasonable people will likely disagree.  But to me it seems
there are only two courses which are consistent with representative 
democracy and the American experience: one is to defer to the legislature,
so that an act is presumed valid unless it can be shown contrary to the
discernible, original intent of a Constitutional provision; the other is
to adopt a theory of coherent extension.  That is, the extension of 
explicit interpretation remains consistent with previous interpretations.
This is to say, the present clarification of the law adds to but does not
alter what is already known of the original intent of the law.  If
difficulties still remain, it's best to have more than one person on the
Supreme Court.

2. The intentions of the ratifying legislatures should be followed.  Some
distinction should be made between the exercise of sovereignty in enacting
a law and the interpretation of the law.  The best analogy that comes to
mind is the negotiation of a contract.  If someone proposes a contract,
the meaning is taken to be understood whether or not I sign it; if I 
decide to sign it, I am agreeing to the understood meaning.  And so,
when Congress debates a proposed amendment, the meaning is worked out
and the core of the sense is established.  From there the states can
decide for themselves whether to adopt it; they can, as it were, sign
the contract.  But the fact that the Constitution is the Supreme Law of
the Land pretty much rules out leaving questions of interpretation to
the states.  So, I don't think the doctrine of original intent leads
to the difficulty you mentioned.  I think instead the doctrine of state
sovereignty (over the federal union).

3. Original intent is not public, but private.  The sources mentioned
in item 1. are certainly public.
   If you would prefer a literalist interpretation of the law, I would
incidentally be curious to know: Do you accept paper money?


    Thank you for your consideration.


John Rickert
rickertj@athena.cas.vanderbilt.edu

Newsgroups: alt.politics.usa.constitution,alt.politics.usa.misc