From: wdstarr@athena.mit.edu (William December Starr)
Newsgroups: talk.politics.misc,alt.politics.usa.misc,alt.politics.usa.constitution,misc.legal
Subject: In regard to Original Intent Analysis (was: Term Limits...)
Date: 10 Oct 92 16:20:31 GMT
Organization: Northeastern Law, Class of '93


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In article <1992Oct8.040237.10960@ucsu.Colorado.EDU>, 
fcrary@ucsu.Colorado.EDU (Frank Crary) said:

> > were the "Framers" really omnipotent? :)  [Randall Tyers]
>
> No, but the Constitution is a written code of law. To read into it
> whatever one wants, would be equivilent to throwing away the whole
> thing. Wherever possible, it should eb interperted to mean what it
> was written to mean (e.g. what the framers intended the provision in
> question to mean.) This helps remove modern political bias, etc..

I have to express an opposing opinion.  I have three problems, two
small and one large, with the concept of using "original intent"
analysis to interpret the Constitution.  The smaller ones first:

(1) Applying Original Intent analysis without introducing modern
political bias is tricky, perhaps impossible.  In many cases, it's
difficult-to-impossible to determine with certainty what the original
intent of the Framers was.  Thirty-nine men signed the original
document (not counting William Jackson, the secretary whose signature
also appears as an attestation of the veracity others and of the
accuracy of the text).  Even with Madison's notes of the Convention
(which were not attested to by the other thirty-eight men) and the
Federalist Papers (which express the opinions only of the "Publius"
trio, Madison, Hamilton and non-Convention-delegate John Jay; the
Papers can be attributed to the rest of the Framers only to the extent
that any given Framer didn't squawk loudly and publicly about them) to
guide us, it's not easy to point at any particular ideology, doctrine
or interpretation and say "There!  *That's* what The Framers (or a
majority of them, or a plurality of them) actually meant."

(2) Even if we can determine the Original Intent of the thirty-nine
Framers, it's not clear that we should respect it as being
controlling.  The Framers, after all, only *wrote* the Constitution
and submitted it to the States for ratification; they did not ratify
it themselves.  If anyone's opinion of what they thought the
Constitution meant should be respected, I think it should be the
opinion of all those who actually ratified it -- _they_ after all,
were the ones who made it the Supreme Law of the Land.  Of course,
determining the collective and definitive Original Intent of all those
state legislators and their constituents presents a virtually
insurmountable problem in logistics and historical study.

(Note: the above two points deal only with the original, unamended
Constitution.  I believe, though, that pretty much the same analysis,
with only minor modifications, would apply to discussion of the
various Amendments as well.)

(3) My biggest problem with Original Intent is philosophical: I
believe that one of the factors necessary for any state's rule to be
legitimate is that its laws be placed out in the open, on public
display, where every citizen can examine them.  A state with secret
laws, in my opinion, is not justified in demanding loyalty, obedience
or support from its people, and neither is it justified in punishing
them for failure to provide same.  I apply this doctrine to the
question of Original Intent as follows: the Constitution, as written
and ratified, is on public display, available to any citizen who wants
to examine it.  The Original Intent behind it is not.  Therefore, in
any situation where there is a perceived conflict between the clear
language of the document and a claim as to what the Original Intent
was, the document must triumph.  Furthermore, I believe that where the
language of the Constitution is not clear, the legitimacy of the state
requires that the situation be considered to be a "hole" in the
Supreme Law of the Land, which must be filled in by state now, using
the standard, legitimate procedures for doing so (that is, the
standard legislative process or, where necessary, the Amendment
process laid out in Article V of the Constitution).  To resort to
using the Original Intent to fill in the gap would be to use a "secret
law" and would have the state saying, "Well, it was there all along;
we just didn't have to bring it out into the open where you could look
at it until now."  I don't like that.

Just my opinions, of course...

-- William December Starr <wdstarr@athena.mit.edu>
Newsgroups: talk.politics.misc