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A few days ago a well respected colleague took the time to read this blog. He sent an message to ask a few questions regarding the method of interpretation known as Originalism or Original Intent. To start here is a short lesson on the major schools of though on the interpretation of the U.S. Constitution.
Methods of Constitutional Interpretation
The following information was paraphrased or directly quoted from “We the People: The Citizen and the Constitution” textbook by the Center for Civic Education which had many writers, contributors and editors, to many to list here.
Textualism – Also know as strict constructionist, this method “involves looking at the meaning of the words in the Constitution and giving each word, phrase, or clause its ordinary meaning.” This method is meant to keep the text neutral in its interpretation by the federal courts. It is meant to keep the judges from placing their own values on the document. This makes “the law certain and predictable” (180).
Original Intent – Also, know as Originalism and related to the previous interpretation method, this answers the question of how to interpret unclear words, phrases and clauses. The use of this method seeks “to understand what the Founders meant when they wrote” the Constitution. The concept is that the Founders chose these words carefully when they debated the Constitution to produce an “enduring… framework.” This is meant to also help sustain the neutrality and stability in the law (180-181)
Fundamental Principles – Concepts such as the separation of powers, checks and balances, limited government, judicial review, rule of law, natural rights republicanism and many others are key principles in understanding the Constitution. This method uses these principles “to interpret the meaning of the words, phrases and clauses that may be unclear” (181).
Modernism – Also know as instrumentalist, this method is the one which many people decry as being activist. The people who follow this interpretation method subscribe to the idea that the Constitution is a living document, that it should be interpreted according to the “changing circumstances and contemporary needs” of the nation. To not follow this method means that Constitution will need to be amended frequently or new conventions held to adapt the Constitution to the changing times. Those who advocate for this method “argue that justices should not hold back social progress to outmoded understandings of the Constitution (181).
Vagueness of Constitutional Language
From my illustrious colleague:
I’m curious why you think the founders wrote Articles 1-3 as vague as they did if they had the intention of enumerating a narrow scope of powers for Congress? In other words, how is such a broad enumeration consistent with strict construction and originalism?
The Anti-Federalists made the argument in their articles that the document had listed many vague powers. They specifically were concerned about, what are call implied powers, in the Necessary and Proper Clause. (This topic has been addressed in other article but will devote some time to this concept later in the article to address a modern issue with Original Intent.) But Founders did not think they were being extremely vague. The Founders, knew what specifically they were talking about when they mentioned vague terms like commerce or general welfare. The meaning of these words can be seen in their own writings during the ratification of the Constitution through the Federalists Papers, as well as other primary documents. To say that no one knows what the Founding Fathers meant by a particular word or phrase is a straw man argument with no basis. Lets look at the vague term of general welfare.
In Federalists Papers #41, James Madison says many people attacked the taxation power of Congress (Article I, Section 8, Clause 1) because c it allows Congress the “commission to exercise every power which may be alleged to be necessary for the common defense or general welfare.” His first refutes this argument say that if no other enumerated powers be listed “the objection might have had some color.” He continues:
But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? … Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity.
He continues later in the same article that the same phrase, “general welfare” is used several times in the Articles of Confederation. He continues:
Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever. But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention.
There are also numerous quotes of the Founding Fathers explaining their interpretation of the term general welfare. For example, Jefferson often says that the use of the term general welfare to take from the productive and give to the unproductive is an ill interpretation of that Constitution. Let us move onto the other questionable vague term in the Constitution: commerce.
The Federalists Papers used the term commerce and trade almost interchangeably, and with good reason, they are synonyms for the same acts. When you see these terms used with in the Federalist Papers it generally refers to the trade of goods between states, the exchange of goods. Take this quote from Federalists Papers #42 as an example. Madison is addressing the powers granted to the Constitution and while they are necessary. He states:
A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former.
The problem they were trying to solve in the Commerce clause (Article I, Section 8, Clause 3) was the impending trade wars between the states with their tariffs. It was not about regulating economy of the nation, as a whole or in parts. This clause was about preventing the states from regulating trade that goes through their territory to another state. This is defended by the fact that the states are forbidden in the Constitution to raise import or export taxes for their revenue. Its not about regulating businesses its about regulating the states to prevent them from hindering trade between each other.
The terms discussed previously are most vague in the Constitution. A brief review of the other specific enumerated powers in the Congress (Article I, Section 8), and other parts of the Constitution shows that the Founders were surprisingly specific in the enumeration of powers, not vague. And even their were more terms that were left intentionally vague, we have countless records of the Founders own words to draw upon to interpret what they meant. If there are any other terms that anyone sees as vague in the Constitution and the enumeration of its powers, please comment so we can discuss what it means.
Responsible Flexible Government
From my respected colleague:
I agree we should always consider the intent and meaning at the framing, and that the job of the court is to interpret the law, not create it, but to end it at originalism seems inconsistent with the idea of “responsible government” as Madison called it. My personal understanding is that the framers wanted to allow flexibility in regards to the powers of all three branches in order to make the document resilient as well as allow for Congress to meet the needs of the general welfare in the context of the time. The founders new they were only human and couldn’t see the future, some of them even doubted the survival of the union.
The Necessary and Proper clause was put into place to help the Constitution flexible but remain static in the powers and principles. All laws made under the necessary and proper clause must have their power granted in the Constitution. There is no inconsistency because you still must understand what those words meant in their original context before you can move forward and write laws from them.
Absolutism of Originalism
How can we see originalism as absolute in the face of these obvious errors [and/or] imperfections and not look for a more complete understanding of what our government can do within the scope of their power? The definition of “commerce” is a good example. The founders couldn’t have imagined that people would buy and sell their junk on bay, but today that is an obvious part of our nations commercial activity.
Originalism is not the be–all, end–all of Constitutional interpretation, but it is a great place to start. Just as Biblical scholars must first understand the original meaning of a passage of scripture, in the original language, before they can apply meaning to modern day event; so must we all consider the original intent of the Founders in the passages of the Constitution and the eventual amendments. To ignore this intent would be foolish, especially since there are thousands of primary documents that explain to us who and what they thought on many of these vague terms. Let me present to you a few examples how we can use all of them in our interpretation.
The original intent of the “assistance of counsel” in the 6TH amendment protected only the right to have a lawyer present, not the guarantee of it. Today all citizens accept the fact that they are entitled to a lawyer for their defense in any criminal case, due to the judgement in Gideon v. Wainwright. This decision is an activist decision using the interpretation methods of Modernism. It creates a law that the states must follow though. But it still uses the methods of original intent or fundamental principles to reach that decision. If Founders saw the scene of American criminal justice and investigation today they would probably agree that people need a lawyer in a criminal defense, which in line with the founding principles of due process and a fair trial and therefore in line with their original intent as well.
Original intent and founding principles are still valid even when trying to expand the power of government through legislative means. This is accomplished through the Necessary & Proper Clause (Article I, Section 8, Clause 18). Here is an example. In the view of textualism, strict constructionists would make the argument that the creation of the U.S. Air Force or Coast Guard, is unconstitutional. The Constitution only truly allows the creation of an army and navy. Under the necessary and proper clause it is not. First, because the creation of the Air Force was absolutely needed (necessary) and reasonable (proper) with the creation of airplanes and their uses in militaries around the world. Secondly, because it is based on a power Congress already possessed in the Constitution, to raise and support and army and navy (Article I, Section 8, Clauses 12–13). Congress must first find its authority in the Constitution before it can expand in necessary and proper ways. It is also in line with the original intent and founding principles in protecting the nation and its citizens.
And a second question I have is how much you feel originalism is discredited by things like the 3/5 compromise, slaves as property, denial of suffrage for women and African American, etc.
First, to discredit an entire idea, movement or theory because of the flaws of a person or the errors of a generation is a flawed view of history. Martin Luther was an anti–Semite. Does his anti–Semitism discredit all his theology and actions of the Reformation? There are reports that Martin Luther King, Jr. was an adulterous husband. Does that discredit his work as a civil rights leader? Lincoln was a bigot who thought blacks were not equal to rights. Does that discredit the moves he took to free the slaves? Only the reader can answer those questions.
Originalism is not discredited by the errors of the Founders, such as the Three–Fifths Clause or denying suffrage to women. As heard numerous times in the “We the People” state competition, the most of the Founder abhorred the tradition and practice of slavery; many of them freed their slaves upon their deaths. It was their original intent to end slavery in the United States. The Constitution is not a document about slavery, but about the limits of government. Another article on this site deals with that topic as well. There are a few examples of both bad and good decisions that show Originalism is not discredited by the practice of slavery. The arguments against discrediting the view of Originalism will focus on those of slavery. These mostly surround the 1858 Dred Scott decision by the U.S. Supreme Court
The decisions of the Dred Scott was decision based on modernism or judicial activism, and does not draw any true authority in the Constitution or Originalism. First, the thought of some people at the time was that African slaves were property, but this is not an idea supported by the Constitution. Any references to slaves in the Constitution, like being referred to as “other persons” or their “importation,” still calls them people, not property. They may have been seen that way by individuals, but any government action that treated them as such would be a misinterpretation of the Constitution. Also, the fact that “all other persons” would be counted as Three–Fifths of a person, was only for apportionment of representatives in the House, it was never meant to imply they were only worth three–fifths of a person. This was a compromise to get the Constitution approved by the convention, not a necessarily view of all the Founders. Ben Franklin realized this early in our history that the Africans were not inferior to Europeans, which is why he and others created the first abolitionist groups in America. To follow the view of the founder’s original intent and principles would be the eventual abolition of this peculiar institution, not continue it.
Secondly, the judgement that Dred Scott was not a citizens (since blacks were not citizens at the founding of the Constitution) is a flawed view of the Constitution with no basis in Originalism. The Constitution makes no reference to the qualifications to be a citizen, until the 14TH Amendment. That was left to the states to decide, under the principle federalism. Citizenship was determined by the states, so the courts should have looked at the laws of citizenship in those states before making a judgement that Dred Scott was not a citizen. In both cases, the original intent of the Founders was ignored by the court.
Another flaw under this decision was a misapplication of the principle of federalism. The states had the authority to make slavery illegal, and at the time of the decision just more than half of them did. Under the principle of federalism, Dred Scott should have been freed when he left his Missouri, since he would be illegally held in bondage in any free state. The free states Dred Scott lived in should have prosecuted his owner because of the violation of their slave statues. This would have been in line with the Originalism and principles of the Founders.
WOW! This was a long article (over 2,600 words). Thanks for sticking with me today. If you have any questions, comments regarding any of the information presented here today please do not hesitate to comment below. Class dismissed!