Problems with "original intent" interpretation of US Const.

[Liberty]

The conservatives say it all the time. They want to go back to the "original intent" of the constitution. There are a myriad of problems with this, of course. The founders wrote the Constitution to govern an 18th century nation, not a 21st century nation, and they were not all knowing.

So what I want to know is this: How can you effectively counter an "original intenter?" Is there some major specific important role the government plays today that it couldn't under an "original intent" interpretation that could easily counter their argument? I'd imagine there is, but my brain isn't working at the moment.

And remember, the person arguing thus is going to be against universal health care, etc.

[General Zod]

I think I'm just going to point to Wikipedia on this. Yes yes, I know it's wiki, but it has a lot of good arguments against it.

Despite the frequent (and often, insidious) conflation of Original Intent with Originalism, other schools of Originalist thought have been as critical of original intent as non-Originalists.[4]

* Original intent presumes that there is a single, unified intent behind a text. In the case of the Constitution, the Philadelphia Convention was composed of over fifty men, who spent an entire summer compromising and arguing over provisions that were interpreted very differently the moment the Constitution's text became public.[5] It is far from clear, therefore, that those fifty-plus men had—i.e. agreed upon—a single original intent of the text, or if their purposes in drafting the Constitution were predicated on personal self interest [1]
* Even if the Convention did have a single, unified intent, it is unclear how it could reliably be determined from two centuries' distance.
* Many of the clauses of the Constitution are relative, and thus specifically defy any claim that it is possible to divine a single, indisputable outcome to any specific problem or dispute. Key passages in the Constitution were originally cast as flexible evaluations, such as "due process," a phrase that suggests the definitions, requirements and dimensions of court or other governmental proceedings sufficient in any given context to permit citizens to be deprived of their rights were never intended to be fixed forever.
* In the case of US Federal Law, law is made by majority vote in two chambers, and is then signed by the President. 536 people are therefore potentially involved in this process, and not one of them needs to share the same intentions as any other of them in order to play their part in ratifying the bill. They need only vote; their vote will count the same if they share the same intent as their colleagues, if they do not share the intent of their colleagues, and indeed, if they have no particular intention, and are voting solely because their party whip handed them a note saying "be on the Senate floor at 9:36pm and say 'Aye'." Their vote will count even if they are falling-down drunk or if they have not even read the bill under consideration.[6] All of which is to say that giving effect to the intent of the legislature not only presumes that there is a singular intent—no less dubious an assertion where statutes are concerned than where the Constitution is—but, worse yet, the very diversity of these bodies may permit a judge to corrupt his inquiry by finding a floor statement or committee report which suggests an intent that the Judge thinks would be a good result.[7]
* Original intent falls afoul of formalist theories of law, which explicitly decline interest in how a law is made, an inquiry which is obviously at the core of an original intent inquiry.
* Original intent cannot be reconciled against Textualism. Most of those who are originalists in Constitutional matters are also textualists in statutory matters, and textualism rejects the value of the intentions of the legislature in passing a text.[8] If one adopts originalism as an "error-correcting lens which fits over textualism to account for the passage of time,"[9] one cannot adopt an originalist theory which is incoherent with the underlying textualism.

[eion]

I think it would be far quicker to point out that the original text (sans The Bill of Rights, which are be definition ammendments to the Constitution) doesn't contain any individual rights at all, no freedom of speech, no right to bear arms, no right against self-incrimination, but instead is soley concerned with the powers of government.

Once you can get them to admit that the Bill of Rights was a good thing, they have no rational basis for arguing against later ammendments.

[Patrick Degan]

If "original intent" had been meant to govern how the constitution should be applied, it would not have empowered a Supreme Court with the authority of judicial review and interpretation of constitutional doctrine in the first place. Seems the only "original intent" was that the constitution would be subject to judicial interpretation and reinterpretation down the years; especially given how vaguely some of its key clauses were written.

[Andrew J.]

You can point out that the Constitution was written by numerous people who had differing intentions on a number of issues. (That's a problem for intentionalist interpretations of any legislation, by the way.)

If you want something more specific, there's the jurisprudence on the commerce clause since the 1930s, which is much more expansive than what the original writers probably intended but it crucial to the effective functioning of the US government in the modern world.

[Illuminatus Primus]

Try to find an originalist who will condemn or even take notice of the highly radical judicial activism that was responsible for elevating corporate entities to juridical "persons", with greater and greater grants of rights previously the reserve of natural persons. "Originalism", like almost all terminology originating from within the very narrow spectrum of elite opinion which is preached by the intellectual/professional/commissar class, has been so warped and dessicated of any substantive basic English meaning, that is scarcely possible to use the word without immense ideological presupposition and in a honest straight-forward fashion.

What does 'original intent' mean? Does it mean we should incorporate Madison and Jefferson's intent for a relatively socially egalitarian republic, where large industrial and commercial entities would not accrue unwarranted accumulations of economic and political power? By 1792, James Madison opined that the rising commercial elite was "substituting the motive of private interest in place of public duty," which, unchecked, was leading to, "a real domination of the few under an apparent liberty of the many." Madison disdained "the daring depravity of the times," as private powers "become the pretorian band of the government--at once its tools and its tyrant, bribed by its largesses, and overawing it by clamors and combinations."

This 'original intent' was still preserved in the center of liberal progressivism in North America at the turn of the 20th century, with John Dewey calling politics the "shadow cast on society by big business", and pointing out that under such circumstances, "attenuation of the shadow will not change its substance". He pointed out that freedom and democracy has limited substantive content when business dominated society by control over "the means of production, exchange, publicity, transportation, and communication, reinforced by command of the press, press agents, and other means of publicity and propaganda." In a democratic society, workers ought to be "the masters of their own industrial fate". Of course this goes back to Wilhelm von Humboldt in The Limits of State Action, a classic libertarian work, hardly placing this outside the classical liberal tradition. Abraham Lincoln opined that "labor is prior to, and independent of, capital; that, in fact, capital is the fruit of labor, and could never have existed if labor had not first existed; that labor can exist without capital, but that capital could never have existed without labor. Hence they hold that labor is the superior – greatly the superior – of capital."

But of course not; discussion of the "original intent" of the Framers and Founders (if the this distinction is even to be made where it gets in the way or is untidy in the progress of servicing the shibboleths and pieties of the American Cult of the State), is to be limited on how their table manners would've regarded gays and religion, and utterly navel-gazing idiocies about their positions on taxation and public economic activity in an agrarian/cottage-industry, small-production freeholders' economy versus a highly-centralized and hierarchical international economy dominated by a small club of oligopolistic-monopolistic immortal "persons."

[Patroklos]

I think it would be far quicker to point out that the original text (sans The Bill of Rights, which are be definition ammendments to the Constitution) doesn't contain any individual rights at all, no freedom of speech, no right to bear arms, no right against self-incrimination, but instead is soley concerned with the powers of government.

Once you can get them to admit that the Bill of Rights was a good thing, they have no rational basis for arguing against later ammendments.

Thats not an intelligent counter arguement. The original intent, as written into the Constitution, was to alloy for modifications using the process put forward. Amendments are thus not against the original intent. People arguing against amendments just want to amend things back using the legal method.

This is of course not the same as contesting Supreme Court interpretation, which is essentially just a differnece of opinion. I don't think I you can find anyone here who hasn't got a bone to pick with some decision of the courts.

[eion]

Thats not an intelligent counter arguement. The original intent, as written into the Constitution, was to alloy for modifications using the process put forward. Amendments are thus not against the original intent. People arguing against amendments just want to amend things back using the legal method.

How can an amendment instituting an income tax not be a violation of the original intent of the founders? Surely if they'd wanted an income tax they would have included it in the ORIGINAL text.

I can use that same statement for any of the amendments. The second you start assuming the founders were infallible and that the Constitution is never in need of modification or reinterpretation you give up any right to enjoy the protections later recognized by the amendments.

Originalists are almost never concerned with getting back to the original intent of the Constitution, but rather what they think is the original intent of the Constitution. The phrase that almost always follows "We should get back to the original intent of the Constitution" is "by restoring this country to its Christian origins"

Please show me the word "god" once in the Constitution.

It’s a waste of time using rational arguments against irrational persons.

[Solauren]

Considering the original intent of the US Constitution was to legalize an unlawful rebellion against the Monarchy, and justifing the resulting government, I'd say it's still holding up nicely.

[Samuel]

Considering the original intent of the US Constitution was to legalize an unlawful rebellion against the Monarchy, and justifing the resulting government, I'd say it's still holding up nicely.

You are thinking of the Declaration of Independence. The Constitution was created because the Articles of Confederation weren't working.

[Sinanju]

I wonder if it might be useful to point out to a hypothetical "original intent" supporter that trying to invoke 'author's intent' on any written document seems kind of like a fool's errand, because how could you possibly know what somebody in the 18th century was thinking when they wrote a particular document?

Sure, the Founding Fathers left a lot of written material behind, but how much of that was 'well when I wrote this line I was thinking <x>' anyway? It's basically guesswork, and it's probably not a coincidence that people who propose this kind of argument always seem to assume the people who wrote the Constitution were in perfect agreement with them.

[Thanas]

So what I want to know is this: How can you effectively counter an "original intenter?" Is there some major specific important role the government plays today that it couldn't under an "original intent" interpretation that could easily counter their argument? I'd imagine there is, but my brain isn't working at the moment.

Try pointing out that many of the framers, especially Thomas Jefferson, did not believe a constitution to be valid for more than one generation (the reason being the generational contract not being valid when the majority of contractees has changed).

See Jeffersons letter to Madison from September 6, 1789 (I think it might even be on the internet) and a couple others who I can give the titles to you later on.

[Alphawolf55]

Is Jefferson worship still around in those circles though? From what I've seen, people in that movement have been trying to diminish his importance as a founding father.

[CaiusWickersham]

Sinanju: Those external writings do shed light on the framers' general philosophies and what they were trying to aim for in the Constitution. While viewpoints can change over time, people generally don't just wake up one morning and completely flip on their beliefs. Madison's "Memorial and Remonstrance Against Religious Assessments" is his ideas on the Establishment Clause writ large.

eion: The notion of a bill of rights was argued in the Convention. The framers decided not to add that debate on while they were still working on the foundations of a new national government. In fact, several states provisionally ratified the Constitution on the promise of a bill of rights being added on later. While I agree most of the "original intent" people have really no clue about what they're talking about, there are some issues that really are craw-stickers, namely the commerce clause becoming a Congressional blank check.

[eion]

The notion of a bill of rights was argued in the Convention. The framers decided not to add that debate on while they were still working on the foundations of a new national government. In fact, several states provisionally ratified the Constitution on the promise of a bill of rights being added on later. While I agree most of the "original intent" people have really no clue about what they're talking about, there are some issues that really are craw-stickers, namely the commerce clause becoming a Congressional blank check.

But even the Marshall court back in 1824 found that the Commerce Clause is a pretty wide-sweeping provision. Perhaps it was written too broadly, but that is a different argument from the "original intent" of the clause. It was there specifically to ensure the federal government was powerful and able to govern the states effectively, something it was unable to do under the Articles of Confederation.

If certain people think the commerce clause is too broadly exercised (and I can think of at least one occasion where I would agree with that, namely its use in justifying SORNA), then there are avenues to address those concerns, but it has always been a powerful part of the Constitution.

And for the record, most people advocating for a constitutional amendment against or for anything are almost always doing so as a political stunt. It is exceedingly difficult to amend the federal constitution, and ought to be.