# Constitutional Framers? Screw You!!!!!!!!! **URL:** \ **Category:** Great Debates\ **Created:** [January 10, 2001, 4:21pm UTC](https://boards.straightdope.com/t/constitutional-framers-screw-you/49348 "2001-01-10T16:21:55Z")\ **Posts on this page:** 16\ **Page:** 1
**Author:** ![Mahaloth](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mahaloth/32/1079_2.png) [@Mahaloth](https://boards.straightdope.com/u/Mahaloth)\ **Post date:** [January 10, 2001, 4:21pm UTC](https://boards.straightdope.com/t/constitutional-framers-screw-you/49348/1 "2001-01-10T16:21:55Z")
Whenever a debate arises about the constitution, most people immediately begin talking about the original intent the framers had. For **example** , most gun control proponents point out that the framers were probably trying to protect militias. Now, this is not a debate about gun control. Does it matter what the framers wanted? I think the electoral college is a great example of a situation where it does not matter. They put it into effect because of the stupidity of the masses, but we use it for mostly different reasons. The list could go on. What do you guys think? If we disregard the intention of the framers, how do we figure out what warrants a reasonable usage of the constitution? Could the job of the Supreme Court include figuring out what we currently intend the constitution to mean? Well, I think the debate is pretty well set up. Have fun and play nice. :wally ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [January 10, 2001, 4:33pm UTC](https://boards.straightdope.com/t/constitutional-framers-screw-you/49348/2 "2001-01-10T16:33:55Z")
Interpreting the constitution as we _currently_ see fit isn’t the best of ideas… that makes law arbitrary. We try and use the “original intent” mumbo-jumbo to keep some semblence of objective laws but it is clearly far from that as well. I just don’t want to tumble the rest of the way down the hill. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [January 10, 2001, 4:49pm UTC](https://boards.straightdope.com/t/constitutional-framers-screw-you/49348/3 "2001-01-10T16:49:30Z")
The problem is that there’s no such thing, really, as “original intent.” Or rather, there are a bunch of original intentions–the Framers were a disparate group with many different interests who almost never came to an overwhelming consensus. Add to this that several key parts of the Constitution were arrived at by compromise. (The Anti-Federalist Papers is a good read in this regard.) And then there’s the problem of reconciling strict judicial constructionism with the Ninth Amendment–not exactly what the OP was after, but relevant nonetheless. That being said, I think we’ve got a fairly good system of judicial review in place. The Supreme Court, for the most part, does an excellent job of balancing so-called “original intent” with the degree to which culture, politics, and society have changed in the intervening centuries. Important, too, is the fact that the Fourteenth Amendment basically changed the face of the Constitution completely; it’s the _job_ of the judiciary to discover how the changing body of law has impacted society and itself. So understanding what “The Framers” thought about constitution and its amendments may be important, so long as you understand which Framers and appreciate the totality of the constitutional convention debate. But by the same token, the constitution is designed to be ambiguous and flexible (though not, as Daniel Lazare would say, flexible enough to undergo significant changes to its status quo without mass movements and/or bloodshed), and as such is meant to some degree to be viewed through the lens of the present. _Marbury v. Madison_, at the very least, established the province of the Court as the final arbiter of the Constitution. ---
**Author:** ![scratch1300](https://avatars.discourse-cdn.com/v4/letter/s/dfb087/32.png) [@scratch1300](https://boards.straightdope.com/u/scratch1300)\ **Post date:** [January 10, 2001, 5:29pm UTC](https://boards.straightdope.com/t/constitutional-framers-screw-you/49348/4 "2001-01-10T17:29:24Z")
> [@](#): > > \*Originally posted by Gadarene \* > **The problem is that there’s no such thing, really, as "original intent."** That’s why Robert Bork, for one, prefers the term “original _understanding_”. ---
**Author:** ![Mr.Zambezi](https://avatars.discourse-cdn.com/v4/letter/m/7cd45c/32.png) [@Mr.Zambezi](https://boards.straightdope.com/u/Mr.Zambezi)\ **Post date:** [January 10, 2001, 5:41pm UTC](https://boards.straightdope.com/t/constitutional-framers-screw-you/49348/5 "2001-01-10T17:41:48Z")
As with all things, there are matters of degree. Intent is important to a degree. Did the framers intend a presidential monarchy? no. Does that matter. well, yeah, it does. Knowing why a law was created is indeed important to understanding its validity. But I think that what you are trying to get at is support for judicial activism. That is, the courts being able to override legislative or constitutional intent because the judges feel that the law is outdated or stupid. For example, say the supreme court hears a first amendment case. They say to themselves, “well, whatever the framers intended is irrelevant. We are in no danger of an opressive government in these enlightened times. Therefore, we are going to allow the FBI to edit newspapers.” As a conservative, my attitude is that the constitution has served us very, very well for 200+ years. Don’t mess with it unless we are facing certain disaster. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [January 10, 2001, 5:42pm UTC](https://boards.straightdope.com/t/constitutional-framers-screw-you/49348/6 "2001-01-10T17:42:17Z")
Robert Bork also feels we should (seriously) ignore the Ninth Amendment as being “too vague.” Now _there’s_ a constructionist for you… 😃 ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [January 10, 2001, 5:52pm UTC](https://boards.straightdope.com/t/constitutional-framers-screw-you/49348/7 "2001-01-10T17:52:29Z")
> [@](#): > > \*Originally posted by Mr.Zambezi \* > As a conservative, my attitude is that the constitution has served us very, very well for 200+ years. Don’t mess with it unless we are facing certain disaster. Well, except that it really hasn’t served us well, absent the context of the time. I mean that the constitution has, in various eras in American history, served just as much as the justification (to the legislature, executive, and or judiciary) for repressive acts as it has as a preventative. There’s nothing in the Constitution, for instance, which specifically addresses McCarthyism, monopoly, or segregation, and indeed each of these things were at one point or another given the _blessing_ of that august document. The Constitution is not, then, _a priori_ something which will automatically “serve us well.” ---
**Author:** ![The\_Ryan](https://avatars.discourse-cdn.com/v4/letter/t/7feea3/32.png) [@The\_Ryan](https://boards.straightdope.com/u/The_Ryan)\ **Post date:** [January 10, 2001, 6:47pm UTC](https://boards.straightdope.com/t/constitutional-framers-screw-you/49348/8 "2001-01-10T18:47:45Z")
If there is an ambiguity, and we are faced with two valid interpreatations, original intent should be a factor in deciding which to follow. > [@](#): > > \*Originally posted by Gadarene \* > Well, except that it really hasn’t served us well, absent the context of the time. I mean that the constitution has, in various eras in American history, served just as much as the justification (to the legislature, executive, and or judiciary) for repressive acts as it has as a preventative. First of all, the constitution does not serve as a “justification”. It may allow certain repressive acts, but that does not mean it justifies them. Secondly, the amount of repression the constitution has prevented **far** outweighs that which it has allowed. > [@](#): > > There’s nothing in the Constitution, for instance, which specifically addresses McCarthyism, monopoly, or segregation, And there’s nothing that specifically addresses Hustler magzine, school prayer, or the Miranda warning. Is the constitution supposed to deal with every possible situation? > [@](#): > > and indeed each of these things were at one point or another given the _blessing_ of that august document. Again, the constitution does not “bless” acts. The justices that interpret it might, but the constitution does not. > [@](#): > > The Constitution is not, then, _a priori_ something which will automatically “serve us well.” And doctors still lose patients. Should we dismantle the medical establishment? ---
**Author:** ![Mr.Zambezi](https://avatars.discourse-cdn.com/v4/letter/m/7cd45c/32.png) [@Mr.Zambezi](https://boards.straightdope.com/u/Mr.Zambezi)\ **Post date:** [January 10, 2001, 6:58pm UTC](https://boards.straightdope.com/t/constitutional-framers-screw-you/49348/9 "2001-01-10T18:58:46Z")
> [@](#): > > Well, except that it really hasn’t served us well, absent the context of the time. I mean that the constitution has, in various eras in American history, served just as much as the justification (to the legislature, executive, and or judiciary) for repressive acts as it has as a preventative I will put Mccarthyism, Jim crow laws and any “repressive acts” on one side of the scale, and every trial, every election, and 200 years of successful self governance on the other. What abouit all of the right s protected and good done? SHould we change that? What one often sees is a person or group going to the mat over the infallibility of one aspect of the Constitution and then trying to disparage another aspect. E.g. support of the 1st amendment and destruction of the 2nd. I really do not think that things are that different than they were 200 years ago. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [January 10, 2001, 7:12pm UTC](https://boards.straightdope.com/t/constitutional-framers-screw-you/49348/10 "2001-01-10T19:12:06Z")
I’m not sure what you’re agruing against, **The Ryan** , but it doesn’t seem to have much to do with the points that I was making. 🙂 > [@](#): > > If there is an ambiguity, and we are faced with two valid interpreatations, original intent should be a factor in deciding which to follow. I agree that it should be _a_ factor, and said as much in my first post. > [@](#): > > First of all, the constitution does not serve as a “justification”. It may allow certain repressive acts, but that does not mean it justifies them. Secondly, the amount of repression the constitution has prevented far outweighs that which it has allowed. The Constitution _has_ served as justification for repression, without itself justifying that repression. Do you see the distinction? I wouldn’t begin to contest the last sentence of your paragraph there, except to say that nowhere in my posts do I imply that the Constitution is a bad thing. > [@](#): > > And there’s nothing that specifically addresses Hustler magzine, school prayer, or the Miranda warning. Is the constitution supposed to deal with every possible situation? Well, no, and that’s the point. **Mr. Zambezi** said that the Constitution has served us well. I responded that the Constitution itself is value-neutral or ambiguous when it comes to some major issues, and that it is considered judicial interpretation of the Constitution, legislative judgment in keeping with the Constitution, and political stability engendered by the Constitution which have served us well, not merely the document itself. The Constitution is an instrument. It can be invoked wisely or foolishly, and the degree to which its invocation is indicative of wisdom or folly is largely a function of present-day context. _Plessy v. Ferguson_, at the time, was seen to be a good decision. A century later, we think of it as a horrible misstep. Perhaps in fifty years the climate will have changed again. None of this changes what the Constitution means, but rather what we think it means and what we say it means–the document is, as I said, value-neutral in many areas. > [@](#): > > Again, the constitution does not “bless” acts. The justices that interpret it might, but the constitution does not. Exactly. The Constitution was written to provide a framework for government. Provided within that framework is a judicial system which has become the final arbiter of constitutionality. The Constitution did not “bless” monopoly, free speech restrictions, and segregated railroad cars by itself; in _Lochner_, _Gitlow_, _Plessy_, and similar decisions, however, Justices (and the legislatures which crafted the laws which were in dispute before the bench) used to Constitution to **give blessing** to those things. > [@](#): > > And doctors still lose patients. Should we dismantle the medical establishment? That’s a hell of a straw patient you’ve got there, Doc. I never said anything about dismantling, negating, or otherwise invalidating the weight and legitimacy of the Constitution. Constructive criticism, however, may certainly be in order. ---
**Author:** ![The\_Ryan](https://avatars.discourse-cdn.com/v4/letter/t/7feea3/32.png) [@The\_Ryan](https://boards.straightdope.com/u/The_Ryan)\ **Post date:** [January 10, 2001, 11:22pm UTC](https://boards.straightdope.com/t/constitutional-framers-screw-you/49348/11 "2001-01-10T23:22:09Z")
> [@](#): > > \*Originally posted by Gadarene \* > The Constitution _has_ served as justification for repression, without itself justifying that repression. Do you see the distinction? I think I see the distinction that you are trying to make, but I don’t think that you have done so correctly. To “serve” means to successfully provide some purpose. Since the constitution has not justified repression, it does not serve to justify. I think what you mean is that the constitution has been **used** as a justification. As analogy, if I tried to scoop soup with a knife, I would be using a knife as a spoon. However, it would not be accurate to say that the knife serves as a spoon, unless it acually scoops up the soup. > [@](#): > > I wouldn’t begin to contest the last sentence of your paragraph there, except to say that nowhere in my posts do I imply that the Constitution is a bad thing. You did say: [quite]I mean that the constitution has,in various eras in American history, served just as much as the justification (to the legislature, executive, and or judiciary) for repressive acts as it has as a preventative. [/quote] Which suggests that, while you may not think it’s a bad thing, you don’t think it’s a good thing either. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [January 11, 2001, 1:15am UTC](https://boards.straightdope.com/t/constitutional-framers-screw-you/49348/12 "2001-01-11T01:15:38Z")
**The Ryan:** > [@](#): > > I think I see the distinction that you are trying to make, but I don’t think that you have done so correctly. To “serve” means to successfully provide some purpose. Since the constitution has not justified repression, it does not serve to justify. I think what you mean is that the constitution has been used as a justification. As analogy, if I tried to scoop soup with a knife, I would be using a knife as a spoon. However, it would not be accurate to say that the knife serves as a spoon, unless it acually scoops up the soup. Fair enough; sorry for the confusion. > [@](#): > > Which suggests that, while you may not think it’s a bad thing, you don’t think it’s a good thing either. You’re right in that 1) I had forgotten that I balanced equally the Constitution’s ability to be used for bad and good, and 2) I think the Constitution is neither a bad thing nor a _wholly_ good thing, but rather, as I’ve said, value-neutral to a great degree. As far as my statement, you and **Zambezi** were correct in checking me that the Constitution has, on balance, served more positively than negatively for the country and its people as a whole. However, what I said would still stand, I think, were I to make the following emphasis: > [@](#): > > I mean that the constitution has, **in various eras in American history** , served just as much as the justification (to the legislature, executive, and or judiciary) for repressive acts as it has as a preventative. By which I mean that today we feel almost none of the effects of the repression instituted _in the name of, and with the putative backing of, the Constitution._ We have progressed (by our own standards, or maybe _my_ own standards) to the point that the Constitution is usually invoked with care, vision, and wisdom. But there are long periods of our history where repression of one significant sort or another was deemed constitutional–the slave years, at the very least. To this end, then, _in those times_ invocation of the Constitution was as much or more repressive than it was palliative. Now, however, that’s thankfully not the case. Do you see what I’m saying? ---
**Author:** ![The\_Ryan](https://avatars.discourse-cdn.com/v4/letter/t/7feea3/32.png) [@The\_Ryan](https://boards.straightdope.com/u/The_Ryan)\ **Post date:** [January 11, 2001, 2:40am UTC](https://boards.straightdope.com/t/constitutional-framers-screw-you/49348/13 "2001-01-11T02:40:52Z")
I think I see what you’re saying, but I don’t see why you disagreed with Mr.Z’s comments. The problems you cite are largely the result of either the constitution not dealing with an issue, or people ignoring what it says about an issue. There aren’t many examples where the constitution says something about an issue, and that position has caused problems. So while it may make sense to add more issues to what the constitution deals with, it doesn’t make much sense to mess with the issues it does address. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [January 11, 2001, 3:05am UTC](https://boards.straightdope.com/t/constitutional-framers-screw-you/49348/14 "2001-01-11T03:05:49Z")
But then you’re back to the interpretive question of _how_ it addresses those issues. I took exception with **Mr. Zambezi’s** sentiment that the Constitution has served us well so there’s no need to mess with it, by pointing out that the degree to which the Constitution _has_ served us well in the past is correlative to the degree to which you think the “messing with it” has been positive or negative–that is, the Constitution was _designed_ to be messed with, to be flexible, and to be ambiguous. By itself, aside from providing political stability, governmental guidelines, and a general social framework (which aren’t inconsiderable things, admittedly), it’s no more intrinsically good than messing with it is intrinsically bad. **Mr. Zambezi** seems to be contrasting “support for judicial activism” with “the constitution serving us well for 200+ years”; my point is that the two are inextricably entwined, especially after the Reconstruction Amendments. Certainly judicial activism dates back at least to the laissez-faire _Lochner_ decision at the turn of this century (and arguably back to _Marbury_ in 1804); it just might not be the kind of activism **Mr. Z** was thinking of. 🙂 Bottom line: interpretative leeway in applying the constitution to a modern context is not only necessary to keep our political structure relevant, but was to some degree an integral part of original intent in the first place. ---
**Author:** ![2sense](https://avatars.discourse-cdn.com/v4/letter/2/e47774/32.png) [@2sense](https://boards.straightdope.com/u/2sense)\ **Post date:** [January 11, 2001, 8:24am UTC](https://boards.straightdope.com/t/constitutional-framers-screw-you/49348/15 "2001-01-11T08:24:24Z")
> [@](#): > > \*Originally posted by The Ryan \* > **First of all, the constitution does not serve as a “justification”. It may allow certain repressive acts, but that does not mean it justifies them. Secondly, the amount of repression the constitution has prevented far outweighs that which it has allowed.** What about the former inhabitants of this land? Does the Constitution’s protection of those members deemed worthy in this society outweigh the destruction of the societies of our predecessors? ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [January 11, 2001, 3:06pm UTC](https://boards.straightdope.com/t/constitutional-framers-screw-you/49348/16 "2001-01-11T15:06:05Z")
The problem with “strict construction” of the Constitution is that most “strict constructionists” (like Bork) seem to think that the only rights we have as citizens are those specifically spelled out in the Constitution. The framers made it very clear that this was not the case with the 9th Amendment: > [@](#): > > The enumeration in the Constitution, of certain rights, shall not be construed to > deny or disparage others retained by the people. Thus many so-called “strict constructionists” completely ignore the original intent of the framers expressed in the 9th Amendment.