When it comes to the Constitution, Conservatives are apt to argue that the “original intent” of the Founding Fathers should take precedence when the judicial branch interprets the meaning of the Constitution. To them, the Founding Fathers of the United States were brilliant, and crafted a document, that when interpreted, should not change with the times – the “living tree” approach - but that instead should be interpreted in the way that the Founders meant it to be. This “original intent” interpretation has great sway within Conservative circles, partly because it directly connects them with some of the greatest men in all of American history. Yet though this approach makes for great rhetoric – for who wants to argue with great men like James Madison and Alexander Hamilton – intellectually it is a proverbial “dead end”. First, the question can be asked, “How can we know the “original intent” of the Founders”, and second, which Founders interpretations of the Constitution are we to go by?
First, the question of whether we can actually know the “original intent” of the Founding Fathers. Those who argue that we can know this intent, point to such things as the transcripts from the Constitutional Convention in Philadelphia as proof of their claim. They assert that because of these documents we can know why the Founders put certain things in the Constitution and why they did not. But this view overlooks the reality that to know “original intent”, we have to know what each and every delegate from the Convention was thinking. Such knowledge cannot be wholly gleaned from the transcripts that have been passed down to us. Additionally, this view makes the assertion that there was only “one” intent behind the Constitution; but this overlooks the reality that many men could have voted for such a document, yet had vastly different views on what the words themselves mean. This leads into my second point, on which Founders interpretation of the Constitution are we to go by?
On twitter a few weeks ago, I was discussing this issue of “original intent” and its application to today’s judiciary. The woman who I was discussing it with asserted that “original intent” is a good thing and that the U.S. must get back to this interpretation. But I pushed a bit further and asked her to explain to me which Founders’ interpretation we should go by, since many of them drastically disagreed with what the words of the Constitution meant. In response, she claimed (paraphrasing here) that we should only listen to those Founders who agreed with her interpretation of the Constitution. This, my friends, is the crux of the issue. Those who advocate for original intent – and even its sister doctrine (original meaning) – many times only listen to those Founders with whom they agree. They will provide quotes from great men like James Madison and Thomas Jefferson, yet ignore quotes from Alexander Hamilton and John Adams because these men had views which don’t line up with their version of the Constitution. To any reader of American history, it cannot be disputed that the words of the Constitution were interpreted in fundamentally different ways by the two parties that formed after Washington’s Presidency – the Federalists and the Democratic-Republicans. If these men, most of whom were directly involved in the formulation of the Constitution, could not agree to the “original intent” of the Constitution, what makes us think that we can?
In the end, though such doctrines like “original intent” may sound good and poll well with conservative voters, it is an exceptionally shallow position to hold. It not only asserts that us readers, over 200 years removed from the Constitutional Convention, can “play God” and know what the Founders were thinking, but it also blindly ignores the reality of American history and the lack of unity of the Founders on Constitutional interpretation.
As always, I would very much appreciate your input on this issue. What do you think about the doctrine of "original intent"? Do you disagree with my analysis above?