Constitutional interpretation: what use original intent?

–Leonard Levy, Original Intent and the Framers’ Constitution

Are there any situations in which discerning the intentions of the Framers should be anything more than a supplementary helpmeet in matters of constitutional interpretation? That is, two questions:

  1. When should “original intent” be dispositive, and when should other methods of interpretation be employed?

  2. Given that situations exist in which knowledge of original intent is useful, how do we figure out what the original intent was? What sources do we turn to? Towards whom do we look for answers? And what do we do if Framers disagree with each other or, as years pass, with themselves?

The problem with Madison’s journal is that it doesn’t necessarily reflect the consensus of all the delegates to the convention. The Federalist has the same drawback. Those documents are the output of three men, Madison, Hamilton and John Jay.

I think the intent that should control is in the Preamble which states the aims of the Convention in forming this new government structure…

The original intent is never controlling authority, but if all else fails (and/or if their intent seems to support your position) it’s definitely good persuasive authority. The Framers were a bunch of pretty smart guys, after all.

I’d never heard that Madison was completely against the use of original intent in intepretation. Levy obviously believe he was, but I’d have to know more. The Madison quote supplied by Levy seems to be talking about the Convention specifically.

To use the original intent of the “the Convention” (a large group of people) as opposed to “the Framers” (a small group of people) would fall afoul of a your last question. The Convention was full of people who disagreed with each other. Gouverneur Morris (sorry - I never seem to get his first name spelled right) advocated direct election of the Presidency. The composition of Congress was hotly debated. Some felt the Constitution concentrated power too much, some felt it dispersed it too much. Given that, it is best to simply go by the wording of a particular clause.

There are some cases in which original intent is critical, though - almost no one would consider going simply by the wording. The 13th Amendment has never been ruled to ban military conscription, because it wasn’t intended to do so. Opponents of the draft wish this were not so but it is no matter. Obviously “the framers” aren’t involved here since it’s neither in the body of the Constitution or the Bill of Rights, but there are probably more relevant examples.

I can’t completely answer question 1 from the OP, though it is a good one. I suppose we as a society need to make some decisions about which parts of the framers’ philosophy we still hold dear, and which parts go on the scrap heap. In a lot of cases, constitutional amendments have done the job for us; we don’t need to worry about the three-fifths compromise because there are no “other persons” (slaves) left; for that we can thank the aforementioned 13th Amendment. We don’t need to pore over the framers’ intentions on letter of marque and reprisal because privateering has gone out of style.

Still, we need to make use of the best examples of contemporary thinking (i.e., the Federalist Papers) for the toughest nuts of Constitutional debate. These are often extremely brief clauses, especially in the Bill of Rights, which, without recourse to original intent, would be left at mercy of the court’s intent. This would cause the interpretations to vary widely over the years, as the composition of the court changed, meaning huge changes in Constitutional law without any actual amendments. It’s not supposed to happen that way. I know that court opinions have changed over the years, but I believe the changes would be much more radical without use of original intent.

What does “unreasonable search and seizure” mean? Okay, now what does “unreasonable search and seizure” mean if your opinion is completely uninformed by any other document? There can be a marked difference.

I think one of the problems in abandoning original intent is that it tends to make ordinary people feel disassociated from the government.

If legal interpretation reaches the point where a regular person can’t tell what the document means by reading it, you have lost part of the prerequisite for democracy. If you need a lawyer to explain all the precedents and decisions that lead the government to interpret the Constitution as saying something that is not obvious, you lose some of the commitment that citizens should feel towards their country.

I was struck by this in a recent thread on whether or not the Second Amendment guarantees an individual right to own firearms. There was a great deal of legal argument to the effect that the “people” in the Second Amendment didn’t mean what I think of as people, but organizations like the state, and that “the right of the people to keep and bear arms shall not be infringed” meant that the right of the people to keep and bear arms could be infringed, but the right of the state could not.

I would rather not get into the specifics of the Second Amendment argument in this thread, but I think it illustrates a problem with what can develop into the Constitution saying whatever five SCOTUS justices say it says, almost regardless of the actual text.

The more strained an interpretation is, the more clearly I think you can see the issues with the “living document” view of the Constitution.

Certainly it needs to be interpreted, and there are lots of situations that never existed in 1787 that need to be dealt with. And I no more think the Second Amendment applies only to muskets and citizen militias than I think the First applies only to hand-operated printing presses.

But I shouldn’t need an expert to explain what the founding documents of my political system actually say, or it is going to be correspondingly harder for me to feel much sense of connection to it.


You can’t get a change that’s much more radical than going from separate but equal (Plessy vs. Ferguson) to forced integration (Brown vs. Board of Education) without the benefit of an amendment.

Or how about the belief that a constitutional amendment was required to prohibit alcohol in 1919, but the idea that no amendment is necessary to prohibit “controlled substances” (i.e. drugs) by the 1930’s.

One set of fixed words should not be able to have two nearly opposite meanings over time. Original intent is a difficult animal because, as someone noted above, in the legislative process there are many opinions rather than a single “intent.” But a broad view of the concensus of opinion of the drafters should be used to prevent a constitutional phrase from being turned on its head by subsequent generations.

Otherwise, you don’t really have a constitution at all. You have the living document that our constitution has become.

(Since I couldn’t edit my post to add this, I’m quoting myself.)

But this argument presupposes that the “Framers” intent (as you define them) has more worth than the delegates to the Convention’s intent. And that argument is flawed. The Framers had no more authority than the rest of the Convention, and to rely on the interpretations of a small minority of them as representing the interpretations of the whole is unsupportable. There is no evidence, for example, that the authors of the Federalist Papers, or the delegates who wrote other pro-Constitution propaganda, are fairly representative of the views of the delegates, indeed, it appears that they were largely of the wing that favored stronger central government.

But this would substitute the Supreme Court’s intent with the intent of a small number of delegates, who may themselves be running roughshod of the intent of the majority of the delegates. We just don’t know the answer to that question.

The Federalist Papers and the like are fine to use if the Court is seeking wisdom. The Framers were smart guys who thought long and hard about the issues of governance. But they should not be used to seek direction.


Strings of words are not subject to “proof” in the manner of mathematical equations. We’re always gonna be dealing with questions of interpretation.

As has been mentioned, it is not obvious what “intentions of the framers” really means, or why it should matter. Let us suppose that a majority of the attendees at the Philadelphia convention voted to incorporate a certain string of words into the document. Did they all clearly agree on its meaning? Or were they voting for language that cast a broad but diffuse shadow–because they wanted something else further along, or because they thought (as politicians do) that they could “sell” the folks back home on an interpretation that would make them look good? Politicians do things like this.

And of course, one could vote against incorporating certain language when that language came up, but then vote to accept the whole document in the end. Did accepting the document mean accepting the interpretation previously rejected–or not?

Then we have the ratification of the document by the state conventions. Again, many possible interpretations and an outcome that accepts the words but fails to determine their meaning.

Shodan, I agree with you almost completely. We must not allow the People’s Constitution to be twisted and tortured into a set of meanings so obscure that the ordinary person finds it lawyerly gobbledegook.

But has this happened very often, at the ultimate level? Dred Scott is probably the most likely example of indefensible interpretation; some would also mention Bush v. Gore, or Roe v. Wade. Yet even in these cases, the Court didn’t assert a power to boldly ignore questions of original intent or traditional understandings: rather, they professed to find divergent “streams of interpretation” already in existence, and chose one over the other. This sort of creative rootedness seems entirely appropriate–combined with a determination that the Court shall not be the first, but the final, resort for change in society.

To debate this question properly, one ought to consider the real alternatives, rather than some ideal. Original intent has serious problems: E.g. it’s often hard to discern, and it may not apply well to today’s world. OTOH the alternatives are hardly problem-free. In fact, from the POV of this non-lawyer, some of them remind me more of religion than logic. It sometimes seems that almost any decision can be justified.

E.g., a “right to privacy” could justify all abortions, or justify abortions during the first 6 months, or justify infanticide. How does the Court decide which of these to select? It’s not based on public belief. There’s no Consitutional guidance. They simply made up a law that they believed would work well (and I think it does, too.)

So, Gadarene, if you don’t think it’s a hijack, what other intepretation methods should be considered as alternatives to “orginal intent”?

Is anyone but me mildly amused by the tautology inherent in the OP?

“James Madison, one of the Framers of the Constitution, says that we shouldn’t use Framer Intent to interpret it. And since Madison is a Framer…”

Must just be me.

I don’t think it is really a tautology, but it is a very funny and ironic observation. Nice job.

Alternatives to original intent? Legal realism, for one; the idea that the Constitution is a starting point of generalizations that necessarily encompasses situations never foreseen or contemplated by those who drafted it (who we tend to think of as having a single voice in their intent, like Greek chorus. Certain ideas are necessarily hazy, like “due process” or “cruel and unusual”. Instead of trying to ascertain what they would have intended the Constitution to have meant, we apply the law to reflect current social realities, social interests, public policy , etc.

(I shouldn’t have started this thread while gearing up to study for my Admin Law take-home…)

I’ll respond more fully to everyone soon–although Sua’s made many of the points I would have–but I wanted to say that not only is legal realism a creditable alternative, but so is textualism. And textualism, by the way…

…Is what I think you’re talking about here, Shodan. You’re conflating being an originalist (going by the intentions of the Framers) with being a textualist (going by the plain meaning of the language). The two aren’t the same thing–as Scalia would attest, as he’s disdainful about the use of legislative history to illuminate textual meaning of statutes, even when (or especially when) the legislative history shows that the drafters meant something other than what he discerns from the “plain meaning” of the text.

Other than legal realism and textualism, various jurisprudential schools like process theory, law and economics, modern rights theory, neo-republicanism, and critical legal studies can all be used to inform someone’s method of constitutional interpretation.

Thank you Gadarene and pravnik.

No doubt my mathematics background makes me rigid, but here’s the objection I have. This is based on a book by Scalia that I once read. In my mind, there’s a big difference between a decision method and informing a decision.

Take the example of contract law. As I understand it, contracts are enforced based on original intent (provided there was a real meeting of the minds, etc.) Intent may be difficult to discern, but at least we agree on what the goal is. In principle, one can say whether a decision is objectively correct or incorrect.

OTOH having a decision informed by various approaches doesn’t define what one is doing. There’s no grounding of a decision. It’s not only that many different decisions can be justified or rationalized. That can be done with Original Intent, too. It’s that there isn’t even an ideal or theoretical way to say whether a decision is correct or incorrect.

As an analogue, at one time I was head of underwriting for a insurance company that insured businesses. Underwriting involves selecting and pricing large commercial insurance policies. I did some research on how people underwrite. An old-time underwriter’s answer was to list the various relevant bits of information that one should collect. So, I asked him, “What do you do with all this information? How do you actually reach the decision?” He thought a bit, and said, “If you don’t know, then you’re no underwriter!”

I am equally dissatisfied with a judge who is informed by various theories, but who can’t say what her basis is for reaching a decision, except as a case-by-case ad hoc.

IANAL, so all you lawyers and law students, please correct all my errors.

Whose Original Intent?