I thought Scalia very much cared about what the FF’s thought they meant when they passed the laws they did.
Not really. He cares about what the words were commonly understood to mean when they were written down, but not what the motivations were of the writers. Keep in mind that there were literally hundreds of people who ratified the constitution. How could we possibly know what they all thought they were voting on?
And how do those 3 things radically change theory of optimal government organization?
And let’s say in 50 years that homosexuals are accepted on equal footing as heterosexuals? What really changes? Some marriage laws get rewritten? Yes ok, but it seems like minor stuff in the big scheme of things.
The big questions of government still remain the same. Centralized or decentralized? Property rights? Individual choice vs collective good? Managing national debt?
For example, today we debate about government health care. Changing our view of women and blacks doesn’t really change the fundamental puzzle of how to enact that government benefit and how to fund it.
I guess you have some concrete scenario in your head that’s underneath the question in the OP. Why don’t you just say what it is and explain how the founding fathers are handicapped in their thinking about it.
Accepting that everyone is worthy of a vote is a huge change when you are ostensibly running a democratic or representative system.
But more importantly to my point, it shows that the founding fathers were products of their age, not ours. We have no idea what any of them would think of our age, so why give their implied thoughts weight in argument?
They’re dead. They had their chances to make their arguments, make their laws, and otherwise present their cases. The idea that seems to crop up fairly often that I should be against UHC because the founding fathers would be, for example, is goofy. We not only don’t know that they would be since it would be utterly foreign, but even if they were, so what? Values and knowledge aren’t immutable characteristics that they had and we lack.
BTW: private citizens could and did own cannon and large stocks of black powder in the 18th and 19th centuries. The first time the federal government started eliminating “military” weapons was during Reconstruction.
Do we know more than they did? About science and technology? Certainly. About politics? Maybe a few things based on the experiences of the last 200+years. About human nature? Doubtful.
In any case, there are these things called amendments, which we are supposed to use if we think we really need to change how our government works. For that matter, it could be agreed to convene another Constitutional Convention, toss out the entire system and start from scratch. But just what general principles could be agreed upon to replace the general idea of representative democracy that our current Constitution is based on? AFAIK, the only really radical departure in political thought since the Enlightenment was Marxism, and we’ve seen how well that worked out. Or as Sage Rat put it:
The Constitution that the FF’s created was based on the experiences of 200 years of political experimentation in England (including civil war, radical revolution, and counter-revolution) ever since abolute monarchy began to give way to parlimentary democracy. It’s largely devoted to saying what you shouldn’t do or allow based on bitter experience. And we have greatly modified the system we inherited since the American Civil War and the rise of a mechanized urban society.
Because they wrote many things that still control our lives today. If there is a disagreement over what the 1st amendment means, for example, wouldn’t it be helpful to find out what the people who wrote that amendment thought it meant?
The analogy with Henry Ford doesn’t make sense because the Ford Motor Company he presided over has nothing at all to do with vehicles today (yes, yes, the assembly line and things flow from it, but I mean directly)
I don’t think it does suppose that. It doesn’t presume that the framers (or other ratifiers of the Constitution) were at all wise. They could be terrible idiots and this theory of legal meaning would still be true. The argument isn’t about the wisdom of their understanding, but about the democratic legitimacy their understandings imparted to a set of supreme laws upon their adoption.
To boil it down to bare premises:
- Laws have legitimacy because a majority, at some point, consented to their passage.
- The Constitution (a set of supreme laws) is not consented to by each generation, and indeed only makes sense as a means for past majorities to limit present ones.
- Therefore, the legitimate part of the Constitution is that part which a past majority consented to.
Thus, we are legitimately bound by the fact that Congress cannot establish Catholicism as the national religion. We are not legitimately bound by an interpretation of the establishment clause that means the opposite of what the past majority understood it to mean (e.g. it means Congress can’t invent new religions, or some other plausible ordinary meaning of the clause).
The alternative to being at least partially bound by the hands of the Americans alive and voting in 1789 is that the Constitution means whatever we want it to mean. Which might be fine, as a political theory. As a practical matter, it may work just fine to run a twenty-first century government without a set of pre-commitments which will bind future majorities. But it makes the Constitution obsolete and meaningless except as a screen upon which to project our passing whims–or at most a low hurdle to be jumped by the verbally nimble.
To me, the much more important debate is not about whether the contemporary understandings of the ratifiers of the Constitution matter. I don’t really see a way of getting around that. The real meat is over whether it is possible, and what it means, to establish principles the consequences of which may not only be unintended, but actually counter to what the adopters of the principle would have desired. If that is a coherent idea, then we can understood the Constitution as a sort of hopeful document of core principles (and a few discrete rules), the application of which could not at the time of adoption be fully realized or expected, and which may–with future wisdom and changed times–even come to be faithfully applied to do things the framers of those principles would have rejected.
That latter aspect is what I was driving at. I’m talking about someone essentially arguing from not what a ff said or signed into law, but what their personal feelings would have been had they suddenly appeared in 2009, with no other argument made about the rightness or wrongness of any particular action.
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In other words, the argument “The Founders would never have been in favor of X if they could have seen how it turned out in practice”? And are you arguing against that mode of reasoning, or for it?
I brought this up in another thread, what about the the point that the founding fathers thought only 21+ years old white male property owners should vote?
Is their opinion relevant for voting rights? If it isn’t relevant then doesn’t that call into to question whether their other opinions are relevant to society?
Agreed, I think, jsgoddess.
Suppose we were considering passing universal health care, which would impose various regulations on the health insurance industry. But we’re not sure it’s a good idea or if the federal government has the power to do so through the commerce clause. For what reasons might we consult the wisdom of James Madison?
a) To see whether UHC is a wise policy?
b) To see whether James Madison thought the commerce clause would actually apply to regulating the health insurance industry?
c) To better understand the principle contained in the commerce clause?
It seems to me that we can all agree that A is a non-starter. However smart Madison was, his opinion on modern health care is surely next to worthless unless we’re applying some very general maxims. And even if it isn’t worthless, it certainly isn’t binding.
I think reasonable people can disagree about B, depending on whether you accept the premise that a principle can have unintended application. We can also disagree because the evidence is blurry. If Madison had written that the commerce clause wouldn’t apply to such action, it is hard to disentangle his opinion about the proper application of the principle (might not care) from his opinion about the content of the principle (probably do care).
And I think we must ask C. That, it seems to me, is the minimal grip the framers must have upon our world to make the Constitution anything more than mere symbol.
As John Mace pointed out earlier, though, no single adopter’s understanding of the text of the Constitution should be privileged. There were disagreements about the meanings of many clauses. So there’s still plenty of room for good faith disagreement over what is meant by certain principles, even with that narrow scope of which cold dead thoughts matter.
Do you care about what Newton thought about mathematics? Or Einstein about the nature of matter?
Sometimes we care about what people think because they were great thinkers. I don’t care what Ford would think of my car in particular, but his thoughts on mass assembly are certainly still relevant.
I suppose you would have to ask why they felt that only 21+ years old white male property owners should vote. If those restrictions serve some stated purpose, then you can debate whether they serve that purpose or if the purpose is a worthy one.
For example, the age requirement: if it’s accepted that only people who’ve achieved a certain level of maturity should vote, then you could debate whether that aim is achieved by a limit of 21 years, or if it should be lowered to 18 or even raised to 35.
The property requirement, would be relevant to a mostly agricultural society in which most taxable wealth is land based. When agriculture ceases to be the primary measure of a society’s productivity, then you can debate whether other sectors of society legitimately deserve a voice that they arguably didn’t before.
The requirement to be white and male reflects presumed social roles. Would you really want to give the vote to dependents who would have little choice but to vote as they were told to? If those presumptions are challenged, then the question of what good the restriction did can be reexamined.
I think part of the point is that we, as a people, have consented to be governed by the Constitution. This is sort of a contract, in the moral if not legal sense.
In order for that contract to continue to be binding, you cannot significantly change the provisions without the consent of the people. One way to determine what the provisions actually are is to determine what those who wrote them meant by them. That establishes continuity between the Constitution as originally ratified and agreed to, and today.
Certainly it’s an argument that cuts both ways. I have heard gun control advocates say that the original meaning of “militia” controlled how the Second Amendment should be interpreted, and original intent folks say that the First Amendment applies to the Internet. But original intent works (IMO) as one of the checks and balances on the power of the federal government, in that it keeps the feds from sneaking in stuff (or sneaking out stuff) that no one, either among the Founding Fathers or people now, thought they were consenting to when they implied their agreement to the Constitution.
Regards,
Shodan
It certainly is a relevant opinion, and one that we no longer agree with. The important thing, though, is that we took the proper, legitimate steps to change this by passing the amendments that gave blacks, women, and 18 year olds the constitutional right to vote instead of having judges change the law to suit their whims.
Cite?
I want to reference back to the OP and the Henry Ford reference. As others have pointed out, I don’t think it’s a particularly good analogy. If I may may another one, would we consider the thoughts of, say, Beethoven or Mozart when considering modern music. Surely, neither of them could have foreseen the electric guitar, synthesizers, the rise of rock, punk, or death metal. However, would it not still be a relevant question to wonder what Beethoven or Mozart might think about modern compositions? Sure, we probably know a little more about music theory and have a couple hundred years worth of additional experimentation to base our opinions on, but they’re still some of the great minds and their thoughts and compositions have influenced everything since in such a way that we probably couldn’t imagine what music would be like today had they not done what they’d done.
Of course, I think it’s impossible to determine if they would have liked or disliked some or all of modern music, but still, they set certain precedents, and guidelines about composition that are still just as relevant today as they were in their time, even if the difference in age and overall musical taste has changed, those underlying principles are still present.
I think that sort of comparision is much more apt; in fact, I think one could make a similar comparison with many of the arts. Henry Ford wasn’t some great thinker, at least not how it relates to the car; he may be in regard to manufacturing principles, but certainly not to the car. The car is bound by functionality, efficiency, and to what will or won’t seel; it isn’t bound by philosophies, understanding of human nature, and principles the likes of which something like government is.
Thus, while Henry Ford’s thoughts on the modern car is pretty much useless, I think the thoughts, intentions, and motivations of the founding fathers is still relevant. They aren’t the end-all-be-all of political dilemmas like some people treat them to be, but what they would have to say about those underlying principles and philosophies are still relevant today. It is still up to us to determine exactly how our time affects those priniciples, but it’s their thoughts that really help us do that; otherwise, how should we reasonable expect that “free speech” actually should apply to the internet and television, that the 2nd amendment applies to modern advances in weaponry, etc.
Interesting. So, how would you have decided Marbury v. Madison? The case did two things that are pertinent to your assessment: (1) it established the power of judicial review, which allows the judiciary to undo acts of the legislature as unconstitutional, and (2) the Constitution does not expressly grant this power to the judiciary (and theoretically, it could repose in either of the other two departments of our government), nevertheless, Justice Marshall inferred from the principles of the Constitution such a power. Would you have done the same? If not, who ensures that the Constitution is not violated? Does any department of government have such a power? The Constitution does not specify its enforcement mechanisms.
I’m actually going to disagree with this to some extent. Those views, while distorted and bigoted in modern times, were common place in their time. That doesn’t excuse that bias, but accounting for it gives us a more generalized idea of what the principle was and how it is modernly applicable. That is, they were against the idea of nobility; a person isn’t a leader or not just because of who his parents are, but should have the consent of those governed. As our society has evolved and come to realize that race and sex are just as dumb as nobility, we’ve made those adjustments. And I’m sure that 200 years from now, in the way we look back at Blacks or Women being treated as subclass citizens, I’d suspect those people will look back at the stigma against homosexuality in much the same light.
So while their thoughts on Blacks and Women being in power probably aren’t relevant, the underlying concept of the consent of the governed is just as applicable today as it was then.