With the impending appointment of a new justice to the Supreme Court and mid-term elections around the country, a lot of talk these days seems to center around what the “original intent” of the Constitution is and how it should be interpreted in making law and policy. From talk show pundits to local newspaper editorials, everyone seems to have an opinion about how our founding fathers intended the Constitution to guide our country from the eighteenth into the twenty first century and beyond.
I have a different question.
Is it even possible to know what the “original intent” of these great men was when they crafted the document that would be the basis for our government? Sure, there are writings such as the Federalist Papers and the occasional attributed quote or philosophy that might shed some light. But ultimately, these writings are the opinions of singular men who, by necessity, came together in compromise to form a more perfect union. Not all the delegates to the convention agreed with each other or every word set out in the Constitution they were writing. Some had such differing viewpoints on the document that legitimizes our country that they would be life-long enemies. By all accounts, the delegates argued over every point and disagreed in almost every way before cooler heads and the hot July weather prevailed. They even argued over how future generations of Americans would use the Constitution to interpret laws and policies that they could not foresee.
Some argue that the Constitution specifically did not address the idea of a “static” or “living” document because the founding fathers knew that the document would have to evolve as the union did. After all, it’s a lot different governing a country of 13 verses 50 states. Others argue the opposite; that these great men were so firm in their beliefs and commitment to a new form of government that its original wording should be tampered with only at great peril.
But let’s get real for a moment. Those who cry, “Original Intent!” every time lawmakers or the courts violate their idea of what’s right and what’s wrong for this country, they tread a fine line. After all, African-Americans would be considered as 3/5ths of a person if the American people hadn’t decided that the Constitution needed to do the right thing and evolve with the times. I’m sure some of the founding fathers thought the possibility of free black men and women to be inevitable given time, but others decried it to their dying day, possibly after.
Changes to the Constitution are allowed for in the very document itself. These men were wise enough to conceive that with amendments, things they could not consider in their time might be addressed by the people in another. Under the nineteenth amendment, I, and all other woman, am specifically given the right to vote, something we did not enjoy until 1920. That’s 150 years after Washington, Franklin, Madison, Adams, Jefferson, and their fellow patriots crafted their “original intent” into the Constitution.
Original intent is ridiculous to call foul with. Unless you can have a conversation with our founding fathers and ask them to explain their thinking behind each article of the Constitution, original intent can’t truly be known. I’d also bet that many of them would be hesitant to discuss their original intent without hearing what you raised them from the dead to ask them about.
Take the second amendment, for example. If the NRA held a séance and asked for clarification of the right to bare arms, does anyone honestly believe that one of these great men wouldn’t want to know why they were asking the question? “What has transpired between then and now that it’s become such a contentious issue?” I imagine someone saying. After all, a rifle in the home in case of invasion by hostile forces, a bear, or robbers when the nearest neighbor is acres away, doesn’t seem that unreasonable. But watch their ghostly faces as weapons like bazookas and automatic machine guns, weapons they could not have conceived of in the eighteenth century, are described in our homes and on our streets with very little oversight. I doubt many of them would immediately jump to defend the right to bare all arms. After all, people who arm themselves with large caches of guns in an effort to overthrow corrupt governments were called state militias in the eighteenth and nineteenth centuries. Today, unless you’re wearing a National Guard uniform, it’s likely that the FBI and the ATF is camped outside your compound because of those very weapons, and you are considered a cult.
Yes, there are many important and moral issues that our country could use clear, Constitutional guidance on. But until the founding fathers themselves can tell us what they meant when they wrote that, “Excessive bail shall not be required,” in Article 8 (Excessive in amount? In proportion to the crime? Is the same bail set for Lindsay Lohan excessive when compared to a school teacher accused of the same crimes?) we can’t know the true original intent.
So let’s be careful with the words that we use. Asking a nominee to the Supreme Court if she intends to follow the original intent of the law as set out in the Constitution is a somewhat insulting question. She can’t possibly know what the original intent was. Perhaps you need to rephrase the question. Try replacing the word “original” with the word “literal.” Hmm . . . If that word doesn’t sit as well, I don’t blame you. Literal interpretation would mean a lot of things that we consider moral and right under the Constitution may not be so moral or right. Certainly, original and literal aren’t interchangeable. But tell me, if we can’t know original intent, and literal intent is not something we’re completely comfortable surrendering ourselves to, what word should we use?
Maybe the answer isn’t in the thesaurus. Maybe the answer lies with reconsidering the motives behind the question. If you truly believe that you know the founding fathers’ original intent towards legalizing gay marriage, or whether they would agree that climate change is a legitimate concern, or that corporations larger than empires that existed in their day should have unlimited ability to influence elections, or even if they would believe that what you say in a blog on the internet is protected by privacy laws, then no one will ever be able to convince you otherwise. Perhaps not even the founding fathers themselves.
Let us choose our words, and our reasons for speaking them, more carefully, lest even more words lose their original intent.
I have a different question.
Is it even possible to know what the “original intent” of these great men was when they crafted the document that would be the basis for our government? Sure, there are writings such as the Federalist Papers and the occasional attributed quote or philosophy that might shed some light. But ultimately, these writings are the opinions of singular men who, by necessity, came together in compromise to form a more perfect union. Not all the delegates to the convention agreed with each other or every word set out in the Constitution they were writing. Some had such differing viewpoints on the document that legitimizes our country that they would be life-long enemies. By all accounts, the delegates argued over every point and disagreed in almost every way before cooler heads and the hot July weather prevailed. They even argued over how future generations of Americans would use the Constitution to interpret laws and policies that they could not foresee.
Some argue that the Constitution specifically did not address the idea of a “static” or “living” document because the founding fathers knew that the document would have to evolve as the union did. After all, it’s a lot different governing a country of 13 verses 50 states. Others argue the opposite; that these great men were so firm in their beliefs and commitment to a new form of government that its original wording should be tampered with only at great peril.
But let’s get real for a moment. Those who cry, “Original Intent!” every time lawmakers or the courts violate their idea of what’s right and what’s wrong for this country, they tread a fine line. After all, African-Americans would be considered as 3/5ths of a person if the American people hadn’t decided that the Constitution needed to do the right thing and evolve with the times. I’m sure some of the founding fathers thought the possibility of free black men and women to be inevitable given time, but others decried it to their dying day, possibly after.
Changes to the Constitution are allowed for in the very document itself. These men were wise enough to conceive that with amendments, things they could not consider in their time might be addressed by the people in another. Under the nineteenth amendment, I, and all other woman, am specifically given the right to vote, something we did not enjoy until 1920. That’s 150 years after Washington, Franklin, Madison, Adams, Jefferson, and their fellow patriots crafted their “original intent” into the Constitution.
Original intent is ridiculous to call foul with. Unless you can have a conversation with our founding fathers and ask them to explain their thinking behind each article of the Constitution, original intent can’t truly be known. I’d also bet that many of them would be hesitant to discuss their original intent without hearing what you raised them from the dead to ask them about.
Take the second amendment, for example. If the NRA held a séance and asked for clarification of the right to bare arms, does anyone honestly believe that one of these great men wouldn’t want to know why they were asking the question? “What has transpired between then and now that it’s become such a contentious issue?” I imagine someone saying. After all, a rifle in the home in case of invasion by hostile forces, a bear, or robbers when the nearest neighbor is acres away, doesn’t seem that unreasonable. But watch their ghostly faces as weapons like bazookas and automatic machine guns, weapons they could not have conceived of in the eighteenth century, are described in our homes and on our streets with very little oversight. I doubt many of them would immediately jump to defend the right to bare all arms. After all, people who arm themselves with large caches of guns in an effort to overthrow corrupt governments were called state militias in the eighteenth and nineteenth centuries. Today, unless you’re wearing a National Guard uniform, it’s likely that the FBI and the ATF is camped outside your compound because of those very weapons, and you are considered a cult.
Yes, there are many important and moral issues that our country could use clear, Constitutional guidance on. But until the founding fathers themselves can tell us what they meant when they wrote that, “Excessive bail shall not be required,” in Article 8 (Excessive in amount? In proportion to the crime? Is the same bail set for Lindsay Lohan excessive when compared to a school teacher accused of the same crimes?) we can’t know the true original intent.
So let’s be careful with the words that we use. Asking a nominee to the Supreme Court if she intends to follow the original intent of the law as set out in the Constitution is a somewhat insulting question. She can’t possibly know what the original intent was. Perhaps you need to rephrase the question. Try replacing the word “original” with the word “literal.” Hmm . . . If that word doesn’t sit as well, I don’t blame you. Literal interpretation would mean a lot of things that we consider moral and right under the Constitution may not be so moral or right. Certainly, original and literal aren’t interchangeable. But tell me, if we can’t know original intent, and literal intent is not something we’re completely comfortable surrendering ourselves to, what word should we use?
Maybe the answer isn’t in the thesaurus. Maybe the answer lies with reconsidering the motives behind the question. If you truly believe that you know the founding fathers’ original intent towards legalizing gay marriage, or whether they would agree that climate change is a legitimate concern, or that corporations larger than empires that existed in their day should have unlimited ability to influence elections, or even if they would believe that what you say in a blog on the internet is protected by privacy laws, then no one will ever be able to convince you otherwise. Perhaps not even the founding fathers themselves.
Let us choose our words, and our reasons for speaking them, more carefully, lest even more words lose their original intent.
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