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.
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
- First, the idea that the intention of the original author must govern
the meaning of the text is simply not true as either a practical or a philosophical
matter. Actually, in both law and life we use lots of different interpretive
criteria to establish what something "means."
- Second, even if original intent was the preferred method, there is
strong historical evidence that the intention of the Framers was that their
intentions should not bind future generations. Original intent tells us
to obey the Framers and the Framers said, "our intention shouldn't
- Third, even if original intent wasn't philosophically and historically
bankrupt, the records we do have of the Framer's original intent indicate
that it is either contradictory or indeterminate. Sometimes both. Since
the proponents of original intent argue that we must embrace their
method or else admit that the Constitution could mean anything, it is bizarre
to find that his method itself is no more than a judicial Rohrsach blot.
- Fourth, in those few areas where original intent is clear, it
is sometimes morally outrageous. Any protagonist of original intent must
confront the question of whether or not, as a moral matter, we can
responsibly allow the intentions of men, some of whom believed ardently
in slavery and almost all of whom believed in the innate inferiority of
women, to govern current constitutional interpretation.
- Fifth, to adopt original intent as the supreme method of constitutional
interpretation flies in the face of most of the Supreme Court's jurisprudence,
the vast majority of scholarly writing, the opinions of most constitutional
historians and, probably the majority of the American people. It also raises
impossible questions of transition from our current constitutional arrangements.
As Mr. Bork once put it, "[t]his Nation has grown up in ways that
do not comport with the intentions of the people who wrote the Constitution
-- the commerce clause is one example -- and it is simply too late to go
back and tear that up. I cite to you the legal tender cases. These are
extreme examples admittedly. Scholarship suggests that the Framers intended
to prohibit paper money. Any judge who thought today he would go back to
the original intent really ought to be accompanied by a guardian rather
than be sitting on a bench."
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.