From: clc5q@hemlock.cs.Virginia.EDU (Clark L. Coleman)
Newsgroups: talk.politics.guns,misc.legal
Subject: Leonard Levy, "Original Intent", etc.
Date: 5 Oct 92 22:10:30 GMT
Article-I.D.: murdoch.1992Oct5.221030.22369
Organization: University of Virginia Computer Science Department

In article <84097@bcsaic.boeing.com> rwojcik@atc.boeing.com writes:
>Despite all of this, you are not going to get a better system by
>rushing to amend the Constitution every time somebody disagrees with
>whatever the Court majority thinks Madison or Elbridge Gerry meant in
>some speech delivered in the 18th century.  If you were to follow
>"original intent" to its logical conclusion, applying it consistently
>across the Constitution, then you would produce chaos in our current
>system, which has evolved over two centuries.

Robert Bork and other scholars have consistently emphasized that they prefer
that their approach to Constitutional interpretation be called "original
understanding" because of the misconceptions that the phrase "original
intent" engenders.  The common understanding of a passage from the
Constitution, whether an Amendment or original Article, both in the political
community and in the community at large (we are a democracy, and not just
in respect to legislation), is what Bork et al. want to determine. Reading
speeches by the authors of a bill helps; but they are not necessarily
decisive.

What did the American public think of the Second Amendment at the time of
its ratification?  Did they think it protected members of an organized
militia only, and that the state could decline to organize such a militia
and render the Second Amendment of no consequence? Or did they understand
it to protect individuals who might or might not ever be called upon to
serve actively in a militia?

Here is the relevant passage on "original intent" and Leonard Levy's
caricatures from "The Tempting of America" by Robert Bork, pages 218-219:


"Leonard Levy of Claremont Graduate School has recently published a book
entitled 'Original Intent and the Framers' Constitution', which attacks
a highly oversimplified version of the philosophy of original understanding
that bears little resemblance to the theory set out in this book.  Thus,
Levy goes to great pains to prove that: (1) the Framers did not mean for
us to attach interpretive weight to their subjective intentions (hence
Madison's secreting of his notes); (2) that the Framers did not mean to
freeze the Constitution so that it would lose its character as a document
intended to serve for ages to come; (3) that finding the original meaning
of some constitutional provisions is quite difficult; and (4) that the
Supreme Court has in fact ignored the constitutional text in many prior
cases, behaving as if it were a sitting constitutional convention presiding
over the writing of a judicial common law constitution.

"No even moderately sophisticated originalist holds the view Levy refutes.
Originalists, as expressed in Chapter 7, do not seek the subjective intent
of the Framers but rather the objective meaning that constitutional
language had when it was adopted.  This can be a difficult task, but
permissible and impermissible ranges of meaning can be ascertained.  Language
is sometimes hard to interpret, but that does not suggest that it can be
made to mean anything.  Similarly, the fact that terms as originally
understood must be applied to new circumstances and factual situations
does not mean that we should conclude that those terms can be redefined
to say absolutely anything we like.  Levy demonstrates that the Court has in
the past sometimes ignored the constitutional text, but does not, and I think
could not, establish that the Court on such occasions behaved legitimately
and should continue on that course."


My advice is to read Bork's book. It doesn't take long, and then you will
have something besides a secondhand caricature to inform your opinions
about "original understanding."

Furthermore, your characterization of the pro-gun forces as relying on
"original intent" strikes me as odd, because I had long ago noticed the
hypocrisy of many on the anti-gun side who claimed that the Second Amendment
only meant thus and so, and the Framers could not envision more modern
weapons, etc., when these same leftists proclaim proudly that they:
(1) are not of the "original intent" school  (in which case, why do they
       argue that the "original intent" of the Second Amendment was just
       to protect organized militia?)
(2) are generally disposed to broaden the protections of the Bill of Rights
       so as to lessen government power over the individual (yet they
       interpret the 2nd and 10th Amendments as narrowly as possible with
       respect to individual rights versus state power.)

(NOTE: I do not include Mr. Wojcik among thes hypocrites --- I am referring
to prominent leftists in legal circles.)

If Laurence Tribe, as he testified before the Senate during Robert Bork's
confirmation hearings, interprets the Bill of Rights in a way that would
broaden individual rights beyond the original understanding, and lessen
state power by implication, then may I assume he favors interpreting the
Second Amendment as broadly as possible in favor of individual rights, and
as narrowly as possible with respect to state powers?  (Hint: that was a
rhetorical question.)

The attackers of original understanding always trot out the cliches about
how the constitution is a "living document" and has to "grow" and so on.
What guidelines shall we agree on to guide its growth?  Individual rights
maximized, state power minimized? No, that won't suit Levy and Tribe when
it comes time to interpret the 2nd and 10th Amendments.  In favor of
greater restrictions on individual rights when lessened mortality results,
or greater safety? No, that would sound like an invitation to tyranny, to
Bork as well as Levy and Tribe, if it were applied outside the Second
Amendment.

It seems that the unstated assumption of the Left is that they will be in
control of the courts, so the "growth" of this "living document" will be
in a leftward direction, and need not be consistent when viewed from some
ideal principle such as individual versus the state, or freedom versus
safety.  When they started losing control over the judiciary, they
panicked and began the various scurrilous campaigns against Robert Bork
and Clarence Thomas and some nominees to the lower courts.  A plane with
no flight plan is fine, as long as they are flying it.  Then they can take
each case as it comes, bending it to their political agenda, without
having to adhere to some well defined principle of interpretation.

So, tell me, what guidelines should we have if not "original understanding?"
Whatever "seems right" to 5 Supreme Court justices?

Bork examines several alternatives to "original understanding" in Chapter 10,
from which I quoted.  The nihilism of Sanford Levinson might be a surprise
to those who quote him in talk.politics.guns.  The personal subjectivism of
William Brennan is pretty effectively demolished as a basis for judicial
action.  Alexander Bickel, John Hart Ely, and Laurence Tribe get the biggest
coverage, while a dozen or so others get a page or two each, including
Brennan, Levy, Levinson, Paul Brest, Duncan Kennedy, Frank Michelman, et al.

I think it would be appropriate if the critics of original understanding
could present an alternative that is not obviously absurd, rather than
nitpick their own misunderstood version of "original intent" ad nauseam.
-- 
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"It is seldom that any liberty is lost all at once." David Hume
|||  clc5q@virginia.edu (Clark L. Coleman)
Newsgroups: talk.politics.guns