Original Intent Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

Original intent, often used as a synonym for originalism, is the doctrine holding that judges have no power to interpret foundation documents or constitutions except in accordance with the intent of the people who created them. In theory, while any court can use it as a method for interpreting any constitution, the doctrine has generated the most controversy more generally in terms of how courts should interpret the U.S. Constitution.

History

The Framers of the U.S. Constitution aimed for original intent to apply in courts and required the judges to be bound by it. Although they knew that this application of the document to specific cases would require inter pretation of the text, they did not prescribe any specific interpretive method. From the beginning, judges often considered the intent of the Framers when they applied the Constitution, but they used other interpretive methods as well. Neither scholars nor judges gave much thought to interpretation in the abstract until the 1980s; only then, and only gradually, did the words originalism and original intent jurisprudence replace such synonyms as interpretivism and intentionalism in legal writing.

In the 1960s, the activist Supreme Court led by Chief Justice Earl Warren declared certain common government activities unconstitutional, such as prayer ceremonies in public schools. To conservatives, it seemed unthinkable that the Framers intended to forbid such things; consequently, they called for a return to the original intent. If judges ought to be bound by that intent, then the school prayer decisions, and other Warren court innovations, were wrongly decided and a later court could overrule them. From the beginning, political figures such as former attorney general Edwin Meese III and former appellate judge Robert H. Bork led the originalist movement. Justices Antonin Scalia and Clarence Thomas are other leading adherents of original intent as are many members of the Federalist Society, a conservative membership organization dedicated to legal reform.

Supporting Views

Originalists argue that constitutional interpretation ought to be controlled by original intent because the U.S. Constitution is a contract—a deal between the rulers and the ruled—and courts always interpret contracts in light of the intentions of their makers. Moreover, the Constitution is the social contract, creating the government, authorizing it to use some powers, and explicitly denying it the right to use others. The government, supporters believe, has no powers except what the Framers agreed to in 1787. A court decision not in line with the intent of the Framers risks giving government more power than it is supposed to have.

The most serious violation of original intent, originalists argue, is the expanded role of the U.S. Supreme Court itself. The Framers intended the three branches to be in balance, and the federal government to be in balance with the states. But in the twentieth century, the Supreme Court took on the power to strike down long established and popular state and federal laws (e.g., those requiring school prayer), greatly diminishing the power of the other branches and levels. Neither public opinion, nor constitutional checks and balances, nor law itself could control this “imperial court.” Instead of balance, originalists perceived judicial supremacy. They argued that since there were no external checks left on court powers, judges had to check themselves. Adopting a rule of original intent, they thought, would bring greater deference to Congress and the states, and a restoration of balance.

Edwin Meese III argues that the Framers had very specific views of how the government was to work, and they left evidence of those views in their voluminous writings. In 2005, Meese and colleagues edited The Heritage Guide to the Constitution, which examines the text on a line-by-line basis and tries to recover the intent behind each clause.

However, historians have demonstrated that the Framers were not so precise. They were fairly specific about many of the structural details of the government they were creating, but they left little evidence of the purpose behind some features. Although they recorded some of their views, they conducted the constitutional debates in secret; the deliberations, reconstructed from fragmentary notes, may have distorted or omitted some of their original intent. In some cases, they also disagreed on how the government was to work. Sometimes they used vague phrases such as “in accordance with due process” precisely because they could not agree. Finally, it is impossible to determine how they thought the government should relate to total war, space exploration, organ transplants, or other recent innovations.

Realizing these difficulties, most contemporary originalists follow Robert Bork in asserting that there are general principles that the Framers followed when they created the government rather than trying to find some literal meaning behind each clause. These principles, such as respect for individual autonomy, remain applicable. In Bork’s view, the task of an originalist is to find and apply these principles to how the government deals with new problems. If the Framers expected their respect for individual autonomy to forbid unreasonable searches in the home, where people feel secure, then the rule can be applied to police searches of automobiles as well. In legal thought, original intent jurisprudence thus gives way to original principles, original values, original meaning, original public meanings, or objectified intent. In this form, it figures in contemporary debates over interpretation.

Opposing Views

Scholars who generally support the idea of a living, or evolving, U.S. Constitution oppose the originalists’ views. Justices Oliver Wendell Holmes and Louis Brandeis, and also President Woodrow Wilson, are considered early advocates of the living Constitution. Justice William Brennan, who strongly endorsed the concept of the evolving Constitution, followed these early scholars. Evolutionists argue that the Constitution, as a social contract, is different from an ordinary promissory note. It is law, but it is also more than law; judges apply it, but it must win the allegiance of people who will obey it willingly and perhaps risk their lives for it in war. In the final analysis, evolutionists contend, the Constitution is not authoritative because Alexander Hamilton and James Madison swore allegiance to it; it is authoritative because the generation now living accepts it. Therefore, the Constitution must adapt itself to the values of the living.

Bibliography:

Barnett, Randy E. “An Originalism for Nonoriginalists.” Loyola Law Review 45 (1999): 611–654.
Restoring The Lost Constitution. Princeton, N.J.: Princeton University Press, 2004.
Bork, Robert H. “Styles in Constitutional Theory.” South Texas Law Journal 26 (1985): 383–395.
The Tempting of America:The Political Seduction of the Law. Simon and Schuster: New York, 1990.
Brennan,William. “Address: Construing the Constitution.” University of California at Davis Law Review 19 (1985): 1–14.
Farber, Daniel A. “The Originalism Debate: A Guide for the Perplexed.” Ohio State Law Journal 49 (1989): 1085–1106.
Goldford, Dennis J. The American Constitution and the Debate over Originalism. New York: Cambridge University Press, 2005.
Kesavan,Vasan, and Michael Stokes Paulsen. “The Interpretive Force of the Constitution’s Secret Drafting History.” Georgetown Law Journal 91 (2003): 1113–1214.
Meese, Edwin III, Matthew Spalding, and David Forte, eds. The Heritage Guide to the Constitution. Washington D.C.: Heritage Foundation, 2005.
O’Neill, Johnathan. Originalism in American Law and Politics: A Constitutional History. Baltimore: Johns Hopkins University Press, 2005.
Powell, H. Jefferson. “The Original Understanding of Original Intent.” Harvard Law Review 98, no. 5 (1985): 885–948.
Rakove, Jack N. Original Meanings: Politics and Ideas in the Making of the Constitution. New York: Random House, 1996.
Scalia, Antonin. “Originalism:The Lesser Evil.” University of Cincinnati Law Review 57 (1989): 849–865.
Whittington, Keith E. Constitutional Interpretation: Textual Meaning, Original Intent and Judicial Review. Lawrence: University Press of Kansas, 1999.

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