Original Intent And The Constitution.

Part of the "Critiques of Libertarianism" site.

Last updated 10/25/07.

This is the beginning of a page on the problems with ideas of "Original Intent" of the founders, a conservative propaganda ploy much favored by libertarians.

This first segment is taken from A Process of Denial: Bork and Post-Modern Conservatism by James Boyle. A delightful review, it traces the pattern of intellectual development of Judge Bork through libertarianism and beyond to other foolish notions.

Original Intent:

The better known variant of originalism, and the one that Mr. Bork first adopted and held as recently as 1986, was the philosophy of original intent. The Constitution means what the Framers (or perhaps the Framers and ratifiers) meant it to. This is also the most influential version -- the judicial philosophy championed by recent Attornies General. But if the philosophy of original intent is the most popular version, it is also the easiest to blow out of the water. Listing the arguments against it is the kind of arduous, lengthy and repetitive task which Victorians believed suitable for the rehabilitation of convicts. I undertake it here in the hope of acquiring virtue.

To sum up, original intent is a philosophically incoherent method which appears to contradict the Framers own intentions. It is sometimes morally objectionable, sometimes indeterminate, flies in the face of precedent and scholarship and raises insuperable problems of practical implementation.

Counter image omitted.