Intent of the Framers

Although I can rarely resist a showing of Sister Act when I come across it while flipping through cable on the weekend I do not usually think of Whoopi Goldberg as my personal touchstone of wisdom. Well, maybe it is for the best that I don't think of her that way but I did greatly enjoy her blasting of Republican nominee Senator John McCain on The View for his invoking of my most hated term, "strict interpretation."

SENATOR JOHN McCAIN: I think what we would be doing is appointing or nominating justices to the United States Supreme Court and other courts who strictly interpret the Constitution of the United States. We would not impose a litmus test on any issue because that's not fair to the American people. But they would have to have a clear record of strict interpretation.
BARBARA WALTERS: That's kind of the other way of saying people who would want to overturn Roe v. Wade.¹
McCAIN: That, that, well, that is saying that, I believe Roe v. Wade was a very bad decision, Barbara. I think it was a bad decision. I thought other, I thought other decisions of the United States Supreme Court were bad decisions. But I want people on the Court who, quote, "do interpret" and not just on the issue of Roe v. Wade, but on other issues.
WHOOPI GOLDBERG: Do I have to be worried about becoming a slave again?
McCAIN: My interpretation of the Constitution of the United States is that the United States Supreme Court enforces the Constitution of the United States and does not legislate nor invent areas that are responsibilities, according to the Constitution, of the legislative branch.

Ok, sure Whoopi might be a little off as the 13th Amendment to the Constitution does prohibit slavery or involuntary servitude, but she is on to more of a point than perhaps she realizes. While the 13th Amendments struck the shackles from slaves it was only the expanding understanding of the 13th, 14th and 15th civil war amendments which allowed that freedom to be actually realized. If McCain really were to find someone who would offer a "strict interpretation" of the Constitution it would be far more than Roe v. Wade which would be on the chopping block.

While those looking to support a particular view of the establishment or free exercise clauses often seek to find justification for their positions in the writings of Jefferson, Washington or others who are generally lumped in together as "founding fathers" this is actually an extremely poor mode of Constitutional interpretation suited more for those who are attempting to justify predetermined outcomes than those who are seeking to engage in actually scholarly debate.

The attractiveness of this mode of interpretation is easily apparent as it allows people to attempt to move the debate from the here and now to some mythical past age based on quotations pulled out of the letters and notes of those who played an integral role in the founding of America. As a judicial approach should be given little weight though as it breaks down in three important areas: it is unable to clearly answer the question of whose intent we should be looking to, it rests on an inaccurate view of the history of the Constitution and it would lead to untenable outcomes if actually applied. Starting with the last one first though let's take a look at the problem of outcome that using a 'intent of the framers' approach presents.

Problem of Outcome

A theory by which we attempt to give meaning to the words of the Constitution cannot function in some areas but be left unapplied in others. One of the clearest ways of demonstrating the flaws in attempting to use the intent of the framers as our constitutional guidelines in some areas is to show what the disastrous consequences would be if it were to be applied in all area.

One of the greatest achievements of our modern times has been the long way we have come on the issue of civil rights. While things are certainly not perfect now if the standard which was applied to all constitutional questions was what the intent of the framers were (in this case the framers of the 14th amendment) that it would undermine virtually all of what has been accomplished. Those who authored and ratified the 14th amendment intended it to be an extremely narrow amendment granting political rights to black males.

If we were to have been bound tightly to that intent we would never have seen the social progress that we have experienced. Through the interplay of social movements and judicial decisions, what had started as the granting of only basic political right for black males has been allowed to expand into economic and social equality as well as expand to cover other ethnic groups. Only people in white hoods, standing next to crosses they just set on fire could seriously advocate the reversal of these precedents--but if the intent of the framers was to be applied then such equality could not said to be mandated by the Constitution.

This case is even more compelling in the area of gender equality than racial equality for under this mode of analysis women would only have the basic political right of voting granted to them under the 19th amendment. Much of the gender equality jurisprudence of the court is based upon the equal protection clause of the 14th amendment - an amendment who's original intent did not apply to women.

Even those who want to rally around the flag or original intent to overturn Roe v. Wade might not be happy with just how many freedoms they uproot along with Roe v. Wade. The foundational case which leads to Roe is Griswold v. Connecticut.² Griswold deals with the scandalous subject of people using contraceptives... married people using contraceptives! The Supreme Court overturned the Connecticut law criminalizing the use of contraceptives finding that it violated the right to marital privacy. You can search the Constitution for the phrase "marital privacy" or even just "privacy" and you will come up with nothing. Does John McCain and others who want Roe overturned based on strict interpretation of the Constitution want Constitution to be able to outlaw condoms or birth control pills? I am guessing the it would just be a small fraction who would want to go that far - so it seems a little disingenuous to want to attack some things with the hatchet of strict interpretation while leaving other things be. I mean, either want to blast us completely back to 18th century or let us be in the 21st century.

Whose Intent is it Anyways?

Those who seek to rail against the current state of judicial understanding in any area of Constitutional law by stating that its original intent is clear and sound govern all questions are really only engaging in empty rhetoric for when we get right down to it... there is no such thing as original intent.

Even if we accept that we can know the intent of one of two of the original authors of the Constitution that should not be mistaken for a clear intent by all of those who framed the Constitution for it to mean that one specific thing envisioned by the one of two we are pointing to. Madison, Sherman, Paterson, Hamilton and Pinckery all submitted rival plans -- just to name a few -- and it was from these diverse plans that one document was formed not always through enlightened compromise but sometimes just through splitting the difference and having one house of congress by population and one house of equal standing (and even worse by sometimes just leaving things purposely vague.)

Ironically this plurality of opinion which makes determining the intent of a framer completely impossible is the very same reason for its popularity in debates on constitutional questions. With such a diversity of opinion available one can in effect go shopping for the opinion which supports their point of view and thus are able to dress their own personal view up in the guise of the 'intent of the framers.'

Furthermore, why do we grant special status to those like Jefferson and Hamilton who wrote the Constitution for what they wrote had no force of law it was only the states that we able to bring it into it's actually standing as the Constitution. Before being ratified by three fourths of the states it had no standing so why then isn't it the intent of those legislators that we are looking at? So now we have to expand our pool of "original framers" from the 39 who signed the Constitution, to hundreds of people who actually made it into the law of the land by ratifying it.

This does not seem to be a workable mode of analysis, so why do we keep hearing about it?