From: fcrary@ucsu.Colorado.EDU (Frank Crary)
Subject: Re: In regard to Original Intent Analysis (was: Term Limits...)
Organization: University of Colorado, Boulder
Date: Sun, 11 Oct 1992 02:15:09 GMT

In article <1992Oct10.162031.8589@athena.mit.edu> wdstarr@athena.mit.edu (William December Starr) writes:
>> 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...

>(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...

Both are certainly valid points, but the "original intent" doesn't
need to be exactly and completely understood to be usefull: The
debates, both during the Convention and around ratification 
often throw some light on the meaning of a unclear clause or
provision. Original intent doesn't automate constitutional interpertaion
but it does limit the range of possible meanings. As such, it
is a usefull tool but by no means the solution to all problems.

>(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.)

Agreed.

>(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.

I agree completely, and I did not intend to suggest otherwise. However,
I see original intent as a tool, to make the language of the document
(which rarely is completely clear) more understandable, and therefore
possible to apply to specific cases. 

>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). 

That really depends on the size of the hole: Consider, for example,
the Fourth and Fifth Amendments. They refer to "unreasonable"
searches and seizures and to a person's right to "due process of
law." Neither phrase has a single unambiguous meaning. However,
it would be unrealistic to add amendments defining all such terms
in detail. However, it is fairly clear from historic records provides
some idea of what was intended. A search can not be called 
"reasonable", simply because a government agent considers it so, nor
that confication of property automatically following "due process
of law", simply because the government passed a law to that effect.
(These are, of course, trivial examples, but in both cases the
accepted, legal interpertation is based on an appeal to original
intent, even if people rarely think of it in those terms.)

                                          Frank Crary
                                          CU Boulder