Government by Judiciary

20. Why the "Original Intention"?

Judiciary_401-450.indd 2 5/10/11 3:23 PM 20 Why the "Original Intention"? CuRRENT indifference to the "original intention"-shorthand for the meaning attached by the Framers to the words they employed in the Constitution and its Amendments-is a relatively recent phenomenon . Those who would adhere to it are scornfully charged with "filiopietism ," "verbal archeology,"1 "antiquarian historicism that would freeze [the] original meaning" ofthe Constitution.2 We are told that the Framers intended to leave it "to succeeding generations [meaning judges] ... to rewrite the 'living' constitution anew,"3 an argument opposed to historical fact. The sole and exclusive vehicle ofchange the Framers provided was the amendment process; judicial discretion and policymaking were in high disfavor; all "agents and servants of the people" were to be "bound by the chains" of a "fixed Constitution." CertainlyJustice Story did not regard himself as holding a commission "to rewrite the 'living' constitution anew": Nor should it ever be lost sight ofthat the government ofthe United States is one of limited and enumerated powers; and that a deparr . Myres McDougal and Asher Lans, "Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy," 54 Yale L.J. I8I, 2I2, 2I4, 29I (I945). 2. Leonard Levy, Judgments: Essays in American Constitutional History I7 (I972). 3· A. S. Miller, "An Inquiry Into the Relevance of the Intentions of the Founding Fathers, With Special Emphasis Upon the Doctrine of the Separation of Powers," 27 Ark. L. Rev. 584, 595 (I973). The Constitution was "not intended to" "freeze its original meaning." Levy, supra note 2 . Professor Miller might have cited Edward Corwin, who, in I925, dismissed "speculative ideas about what the framers of the constitution ... intended it should mean" because "the main business ofconstitutional interpretation . .. is to keep the constitution adjusted to the advancing needs of time." American Constitutional History 108 (Mason and Garvey eds. I964). Judiciary_401-450.indd 3 5/10/11 3:24 PM Why the "Original Intention"? ture from the true import and sense of its powers is pro tanto, the establishment ofa new Constitution. It is doing for the people, what they have not chosen to do for themselves. It is usurping the functions of a legislator.4 Why is the "original intention" so important? The answer was long since given by Madison: if "the sense in which the Constitution was accepted and ratified by the Nation ... be not the guide in expounding it, there can be no security for a consistent and stable government, more than for a faithful exercise of its powers."5 A judicial power to revise the Constitution transforms the bulwark ofour liberties into a parchment barrier. This it was that caused Jefferson to say, "Our peculiar security is in the possession ofa written constitution. Let us not make it a blank paper by construction ."6 Given a system founded on a dread ofpower, with "limits" to fence it about, those who demand compliance with those limits (pursuant to the counsel of four or five early State constitutions) are not to be charged with invoking the shades of the Framers in order to satisfy "the need for certainty ... Ifwe pretend that the framers had a special sort of wisdom, then perhaps we do not have to think too hard about how to solve pressing social problems."7 The issue rather is whether solution of those "pressing social problems" was confided to the judiciary.8 Effectuation of the draftsman's intention is a long-standing rule of interpretation in the construction of all documents-wills, contracts, statutes-and although today such rules are downgraded as "mechanical" aids, they played a vastly more important role for the Founders. Hamil4 · I Story, Commentaries on the Constitution ofthe United States §426 at 325- 326 (5th ed. 1905). "It is not the function of the courts or legislative bodies . .. to alter the method [for change] which the Constitution has fixed." Hawke v. Smith, 253 U.S. 22r, 227 (1920). See also supra Chapter I7 at notes r5-22. 5· Supra Chapter r note 7; see infra note 38. 6. See supra Chapter r7 at note 90. 7·Miller, supra note 3 at 595- 596. 8. "[S]ince the mid-195o's the Supreme Court also has become the principal agent of change within our political order. Tackling political issues that the 'political' branches could not, would not, or dared not touch, the Court assumed the responsibility for political innovation , forcing changes long blocked by a Congress or by state legislatures...