To believe that this judicial exercise of judgment could be avoided by freezing "due process of law" at some fixed stage of time or thought is to suggest that the most important aspect of constitutional adjudication is a function for inanimate machines and not for judges, for whom the independence safeguarded by Article III of the Constitution was designed and who are presumably guided by established standards of judicial behavior. . . .
Restraints on our jurisdiction are self-imposed only in the sense that there is from our decisions no immediate appeal short of impeachment or constitutional amendment. But that does not make due process of law a matter of judicial caprice. The faculties of the Due Process Clause may be indefinite and vague, but the mode of their ascertainment is not self-willed. In each case "due process of law" requires an evaluation based on a disinterested inquiry pursued in the spirit of science, on a balanced order of facts exactly and fairly stated, on the detached consideration of conflicting claims, see Hudson County Water Co. v. McCarter, 209 U.S. 349, 355 , on a judgment not ad hoc and episodic but duly mindful of reconciling the needs both of continuity and of change in a progressive society.
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
john w k:
I believe in liberty and equality--not just in theory, but in practice. Our founding fathers also believed in liberty and equality--but they didn't necessarily practice what they preached. Our concept of liberty today is far more expansive than the concept of liberty held by the slave-owning forefathers of two-hundred years ago.......We are not a nation that is frozen in time. Although I respect your belief that we MUST ASCERTAIN the intent of the framers when interpreting the Constitution, it isn't as practical as you try make it seem.
If the SCOTUS declares a particular provision of the constitution means something other than what the people intended when ratifying that particular provision in question, and such a decision is blindly accepted by the people as being the “supreme law of the land” even though it conflicts with the intentions of the people when ratifying their written constitution, then the constitution has become a meaningless list of suggestions and proscriptions for the people’s employees who would be set free to arbitrarily ignore the people’s intent ___ the result being, the servant has become a master over those who created a servant.
Debra, I ‘m not sure what you are suggesting by saying “the Constitution was not written in words that were frozen in time.” Make no mistake, the wise framers and those who ratified our constitution provided a specific provision for change, the amendment process, in which the people have been left free to alter their Constitution to accommodate changing times.
. . .And what about your misconception concerning the 3/5th’s clause which I expounded upon. Did my response shed some new light on the 3/5’s clause and the fight to abolish slavery which was immediately engaged in by “white men” as soon as they acquired the blessings of liberty?
JWK
You are the one who is rambling on without listening to what I am saying.
You simply want to denigrate people who don't agree with you by giving them the blanket label of being stupid.
If you want to be an originalist, be an originalist. But you can't force me to be an originalist because I know for a fact that I can't go back in time, resurrect people from their graves, and try to come up with some sort of consensus from them with respect to what they may or may not have intended.
I, for one, cannot subscribe to originalism with respect to every word and phrase placed in the Constitution because the people who drafted the language and ratified the language did not even agree with respect to its interpretation and application. And, what they may have intended in theory didn't always carry through into practice.
If our founders intended anything, they intended that the Constitution endure for all time and to secure liberty and equality for each successive generation--for their progeny--not that it be a document frozen in time and become a meaningless piece of antiquity.
Debra, I ‘m not sure what you are suggesting by saying “the Constitution was not written in words that were frozen in time.” Make no mistake, the wise framers and those who ratified our constitution provided a specific provision for change, the amendment process, in which the people have been left free to alter their Constitution to accommodate changing times.
john w k wrote:. . .And what about your misconception concerning the 3/5th’s clause which I expounded upon. Did my response shed some new light on the 3/5’s clause and the fight to abolish slavery which was immediately engaged in by “white men” as soon as they acquired the blessings of liberty?
JWK
JWK:
You are the one who suffers from "misconception." Quoting from an article about slave reparations hardly suffices as authority with respect to the "original intent" of Article 2, Section 2, Clause 3 of the Constitution. If you believe this constitutional clause was intended to penalize slave-owning states, you are truly wearing a blindfold. Your sight is selective, at best:
Article I, Section 2, Clause 3: "Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons."
In addition, Mr. Krauthammer, in his quest to promote a fraudulent "collective responsibility" upon the American working people, fails to acknowledge that after the Revolutionary War and the working people of America gained their independence from foreign domination [the real culprit of slavery on American soil] the people within a number of the states, exercising their newly found freedom, quickly moved to share the blessings of liberty to all by abolishing slavery! For example, the people of Vermont took this immediate action in its 1777 declaration of rights, which declared "no...person born in this country, or brought here over sea, ought to be holden by law to serve any person as a servant, slave, or apprentice". Likewise, the Massachusetts constitution of 1780 declared that "all men are born free and equal" and was used by the court a few years after its adoption to legally forbid any person to be held as a slave. And, in 1787, the Northwest Ordinance stated "there shall be neither slavery nor involuntary servitude in the said Territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted." By the year 1788 all the states north of Maryland , except New York and New Jersey, had legislated to extinguish slavery, and by 1804 the remaining two northern states [ N.Y. and N.J.] had put slavery to rest.
Since you claim to be an "originalist," I find it surprising that you would find that subsequent attempts at reformation would have any bearing at all on the original intent of Article 2 and the 3/5th's Clause.
This is especially so since the States did not "constitutionally" secure the blessings of Liberty for black people until 1868 when the Fourteenth Amendment was added to the Constitution.
But dear, I have been reading what you have posted and thought you would appreciate being offered citations refuting some of the misconceptions you have regarding constitutional law and its most fundamental rule to be followed. I also thought you would welcome historical facts concerning your flamboyant remarks about the 3/5’s rule with reference to determining the number of votes each state receives in Congress assembled.
Sorry I offended you by offering the truth.
“I am sorry if you thought I was suggesting you are stupid. My post was not intended to suggest such a thing. However, the notion that the Constitution means what the Supreme Court says it is, is in fact a very stupid conclusion and a dangerous one to a freedom loving people!”
Why to you resurrect the charge of stupidity when it has already be addressed? Do you have nothing of substance to offer and choose to misdirect the subject matter?
If you want to be an originalist, be an originalist. But you can't force me to be an originalist because I know for a fact that I can't go back in time, resurrect people from their graves, and try to come up with some sort of consensus from them with respect to what they may or may not have intended.
“Originalist”? I do not view my defending the most fundamental rule of constitutional law as being an “originalist”. I view it as supporting and defending “this constitution” which judges and justices have taken an oath to defend rather than create their own rule of law based upon their personal predilections and fancies.
True, Justice Scalia happens to believe that the most effective way for people who share his religious convictions to combat the fallacy that a government of the people, by the people, for the people can have no claim to moral authority beyond that of its individual members is to preserve “in our public life many visible reminders that,” and here he quotes a famously liberal Supreme Court opinion of six decades ago, “we are a religious people, whose institutions presuppose a Supreme Being.” You are free, as am I, to disagree that our nation’s governing institutions presuppose any such thing. I caution, though, against asserting with such certitude - and with so casual a willingness to reduce the views of “the Framers” to a simple slogan - that we all know whose opinions counted from among the many who contributed to the drafting of the Constitution and its Bill of Rights, and from among the many more who took part in the ratification of those instruments. Not all right-thinking students of the period are bound to share your conclusion that, contrary to the complexity many of us have long insisted characterizes such matters, the chorus of all relevant voices unambiguously and unanimously “acknowledged no divine authority behind government.”
Remarkably, after announcing that simplistic slogan, you ask me whether I “disagree.” Of course I disagree. There were nearly as many strands of thought and sentiment on such matters as there were “Framers,” and, in any event, I have long believed that what the Constitution means, what it should be taken to signify, is not remotely equivalent to what any specific bunch of characters - all male, white, propertied, and quite dead - imagined, expected, or, to use your word, “acknowledged” about the text they played a part in promulgating. I expected that you, not being one of the supposed “originalists” whom you might deride in other contexts, would have hesitated before opining with certitude that Justice Scalia’s belief in a Constitutional mandate of greater tolerance for displays of religious faith in the public square than I believe it justifies amounts, no less, to a “strong dislike for the Constitution’s approach to religion.” (Emphasis mine.) If you mean a strong dislike for Sean Wilentz’s take on the Constitution’s approach to religion, why not just say so? Can you seriously suppose that these matters are so open-and-shut as to be beyond debate?
I have from time to time chided Justice Scalia for being far too sure of himself, and for displaying an unfortunate lack of humility and a corresponding excess of dismissiveness about approaches to constitutional meaning that differ from his own. Nothing in my exchange with you shakes my conviction that this criticism of the Justice has been well taken, but I fear that you tread a similar path in “knowing” what many of the rest of us spend decades of our lives and write thousands of pages trying to figure out.
Debra_Law wrote:
john w k wrote:. . .And what about your misconception concerning the 3/5th’s clause which I expounded upon. Did my response shed some new light on the 3/5’s clause and the fight to abolish slavery which was immediately engaged in by “white men” as soon as they acquired the blessings of liberty?
JWK
JWK:
You are the one who suffers from "misconception." Quoting from an article about slave reparations hardly suffices as authority with respect to the "original intent" of Article 2, Section 2, Clause 3 of the Constitution. If you believe this constitutional clause was intended to penalize slave-owning states, you are truly wearing a blindfold. Your sight is selective, at best:
Article I, Section 2, Clause 3: "Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons."
But Debra, the wording of the Clause in question is irrefutable evidence that slave holding states, because of this provision, did not receive the full representation in Congress as non slave holding states because slaves were not counted the same during apportionment as free persons, thereby lowering the number of allotted Representatives in Congress in slave holding states. Sorry you disagree with the truth.
Since you claim to be an "originalist," I find it surprising that you would find that subsequent attempts at reformation would have any bearing at all on the original intent of Article 2 and the 3/5th's Clause.
Making things up about what I have claimed? Where have I claimed to be an “originalist” and exactly what is your definition of an “originalist”.
This is especially so since the States did not "constitutionally" secure the blessings of Liberty for black people until 1868 when the Fourteenth Amendment was added to the Constitution.
Hmmmm. Seems to me as cited above, the people of Vermont took action in securing the blessings of liberty to blacks in its 1777 declaration of rights, part of its constitution which declared "no...person born in this country, or brought here over sea, ought to be holden by law to serve any person as a servant, slave, or apprentice". Likewise, the Massachusetts constitution of 1780 declared that "all men are born free and equal" and was used by the court a few years after its adoption to legally forbid any person to be held as a slave. And, in 1787, the Northwest Ordinance stated "there shall be neither slavery nor involuntary servitude in the said Territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted." By the year 1788 all the states north of Maryland , except New York and New Jersey, had legislated to extinguish slavery, and by 1804 the remaining two northern states [ N.Y. and N.J.] had put slavery to rest.
Tell me Debra, did you know that blacks were allowed to vote in a number of states before the adoption of the 14th Amendment?
JWK
You only imagine misconceptions on my part. You have not "offered the truth." You have not offered historical facts. You have not offered any citations to authority. If you could support your arguments with citations to authority, I would most certainly welcome your input. But you haven't done so.
….the people of Vermont took action in securing the blessings of liberty to blacks in its 1777 declaration of rights, part of its constitution which declared "no...person born in this country, or brought here over sea, ought to be holden by law to serve any person as a servant, slave, or apprentice". Likewise, the Massachusetts constitution of 1780 declared that "all men are born free and equal" and was used by the court a few years after its adoption to legally forbid any person to be held as a slave. And, in 1787, the Northwest Ordinance stated "there shall be neither slavery nor involuntary servitude in the said Territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted." By the year 1788 all the states north of Maryland , except New York and New Jersey, had legislated to extinguish slavery, and by 1804 the remaining two northern states [ N.Y. and N.J.] had put slavery to rest.
.
Constitutions do not change with the varying tides of public opinion and desire. The will of the people therein recorded is the same inflexible law until changed by their own deliberative actions. Thus, a cardinal rule in dealing with constitutions is that they should receive a consistent and uniform interpretation, so that they shall not be taken to mean one thing at one time and another thing at another time, even though the circumstances may have so changed as to make a different rule seem desirable. In accordance with this principle, a court should not allow the facts of the particular case to influence its decision on a question of constitutional law, nor should a statute be construed as constitutional in some cases and unconstitutional in others involving like circumstances and conditions. Moreover, the courts should never allow a change in public sentiment to influence them in giving a construction to a written constitution not warranted by the intention of its founders. [multiple citations omitted].
"On every question of construction [of the Constitution], let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."
Time changes everything/
In all events we think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. "[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry." County of Sacramento v. Lewis, 523 U. S. 833, 857 (1998) (Kennedy, J., concurring).
Constitution meant to foster ‘active liberty’
The principle of active liberty—the need to make room for democratic decision making—argues for judicial modesty in constitutional decision making, a form of judicial restraint. But there is more to it than that. Increased recognition of the Constitution’s democratic objectives—and an appreciation of the role courts can play in securing those objectives—can help guide judges both as actors in the deliberative process and as substantive interpreters of relevant constitutional and statutory provisions. … ncreased emphasis upon the Constitution’s participatory objectives can help bring about better law. In my experience, most judges approach and decide most cases, including constitutional cases, quite similarly. They are professionals. And their professional training and experience lead them to examine language, history, tradition, precedent, purpose and consequences. … Even where they differ, the degree of difference is often small. Our Court, which normally steps in where other judges disagree, decides close to 40 percent of its cases unanimously. Most of the rest involve only one or two dissenting votes. In only about 20 percent of our caseload do we divide 5-4.
‘Originalists’ warn against interpreting purposes behind texts
Some lawyers, judges and scholars, however, would caution strongly against the reliance upon purposes (particularly abstractly stated purposes) and assessment of consequences. They ask judges to focus primarily upon text, upon the Framers’ original expectations narrowly conceived and upon historical tradition. They do not deny the occasional relevance of consequences or purposes (including such general purposes as democracy), but they believe that judges should use them sparingly in the interpretive endeavor. They ask judges who tend to find interpretive answers in those decision-making elements to rethink the problem to see whether language, history, tradition and precedent, by themselves, will not yield an answer. They fear that, once judges become used to justifying legal conclusions through appeal to real-world consequences, they will too often act subjectively and undemocratically, substituting an elite’s views of good policy for sound law.
This view, which I shall call “textualist” (in respect to statutes) or “originalist” (in respect to the Constitution) or “literalist” (shorthand for both), while logically consistent with emphasizing the Constitution’s democratic objectives, is not hospitable to the kinds of arguments I have advanced. … Why, then, does it not undercut my entire argument?
Why the ‘originalist’ approach is unsatisfactory.
The answer, in my view, lies in the unsatisfactory nature of that interpretive approach. First, the more “originalist” judges cannot appeal to the Framers themselves in support of their interpretive views. The Framers did not say specifically what factors judges should take into account when they interpret statutes or the Constitution. This is obvious in the case of statutes. Why would the Framers have preferred a system of interpretation that relies heavily on linguistic canons to a system that seeks more directly to find the intent of the legislators who enacted the statute?
If, however, justification for the literalists’ interpretive practices cannot be found in the Framers’ intentions, where can it be found—other than in an appeal to consequences, i.e., in an appeal to the presumed beneficial consequences for the law or for the nation that will flow from adopting those practices? And that is just what we find argued. That is to say, literalist arguments often try to show that that approach will have favorable results—for example, that it will deter judges from substituting their own views about what is good for the public for those of Congress or for those embodied in the Constitution. They argue, in other words, that a more literal approach to interpretation will better control judicial subjectivity. Thus, while literalists eschew consideration of consequences case by case, their interpretive rationale is consequentialist in this important sense. Second, I would ask whether it is true that judges who reject literalism necessarily open the door to subjectivity. They do not endorse subjectivity. And under their approach, important safeguards of objectivity remain. For one thing, a judge who emphasizes consequences, no less than any other, is aware of the legal precedents, rules, standards, practices and institutional understanding that a decision will affect.
For another thing, to consider consequences is not to consider simply whether the consequences of a proposed decision are good or bad, in a particular judge’s opinion. Rather, to emphasize consequences is to emphasize consequences related to the particular textual provision at issue. The judge must examine the consequences through the lens of the relevant constitutional value or purpose. The relevant values limit interpretive possibilities. If they are democratic values, they may well counsel modesty or restraint as well. And I believe that when a judge candidly acknowledges that, in addition to text, history and precedent, consequences also guide his decision making, he is more likely to be disciplined in emphasizing, for example, constitutionally relevant consequences rather than allowing his own subjectively held values to be outcome determinative.
Third, “subjectivity” is a two-edged criticism, which the literalist himself cannot escape. The literalist’s tools—language and structure, history and tradition —often fail to provide objective guidance in those truly difficult cases about which I have spoken.
Why do I remind you of the uncertainties, in close cases, of linguistic structure, of canons of interpretation and of history? Because those difficulties mean that the “textualist,” “traditionalist” and “originalist” approaches themselves possess inherently subjective elements. Which linguistic characteristics are determinative? Which canons shall we choose? Which historical account shall we use?
Significantly, an effort to answer these questions can produce a decision that is not only subjective, but which is also unclear, i.e., one that lacks transparency about the factors that the judge considers truly significant. A decision that directly addresses consequences, purposes and values is no more subjective and has the added value of exposing underlying judicial motivations, specifying the points of doubt for all to read. This is particularly important because transparency of rationale permits informed public criticism of opinions; and that criticism, in a democracy, plays an important role in checking abuse of judicial power.
Fourth, I do not believe that textualist or originalist methods of interpretation are more likely to produce clear, workable legal rules. But even were they to do so, the advantages of legal rules can be overstated. Rules must be interpreted and applied. Every student whose class grade is borderline knows that the benefits that rules produce for cases that fall within the heartland are often lost in cases that arise at the boundaries.
Fifth, textualist and originalist doctrines may themselves produce seriously harmful consequences —outweighing whatever risks of subjectivity or uncertainty are inherent in other approaches.
Literalism has a tendency to undermine the Constitution’s efforts to create a framework for democratic government—a government that, while protecting basic individual liberties, permits citizens to govern themselves, and to govern themselves effectively. Insofar as a more literal interpretive approach undermines this basic objective, it is inconsistent with the most fundamental original intention of the Framers themselves.
The notion that the constitution means what the Supreme Court says it means is far from being “provocative”. It’s just plain stupid, at least to a freedom loving people who intended to bind the hands of government by the chains of a written constitution! The truth is, the Constitution means what its framers and ratifiers intended it to mean!
As a matter of fact, the most fundamental principle regarding constitutional law is to carry out the intent of the constitution as contemplated by those who framed it and the people who ratified it.
Whose Intent Was It Anyway?
It is one thing, of course, to claim that in seeking agreement the Framers used language that was open-textured and another that they themselves did not think their intentions should play a significant role in the interpretive process. It is tempting, in fact, to think that at precisely those points where the texts meaning is open to doubt, we ought to turn to what they originally had in mind.
It is, therefore, a matter of some significance that the Framers decided on the last day of the Convention (September 17, 1787) not to publish any record of their deliberations. They decided instead to entrust all papers to Convention President George Washington. Throughout the summer too there was a strict code of secrecy, a "gag" rule on all those in attendance. No one was to mention a word about the proceedings to anyone outside the Convention. If we expect arguments about Framers' intent to bring the meaning of the Constitution more explicitly to light, the Framers themselves were certainly quite resourceful in making it very difficult, if not impossible, for us to recover their intentions. James Madison, who kept the most extensive notes during the course of the Convention, also refused to publish his journal until after his death
or, at least, . . . till the Constitution should be well settled by practice, and till a knowledge of the controversial part of the proceedings of its framers could be turned to no improper account . . . . As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character.
Here from one of the authors of the Constitution we have direct evidence that the Framers themselves tried to block access to their deliberations in part because they did not wish their original intent to play an "authoritative" role in subsequent efforts to interpret the meaning of the text. I believe there are at least two reasons for them to have held this view.
The Philadelphia Convention had not been authorized to draft a new constitution: rather it was to amend the Articles of Confederation. Anti-Federalists later made much of this lack of authority in their attack on the Constitution, as they did of the indeterminate language of the text, arguing that the vague language not only left it too open, to Congress and the Court, to interpret the document as they wished, but also might well have been a surreptitious attempt to slip in under the cover of generalizations the intentions of the Framers "to abolish entirely the state governments, and to melt down the states into one entire government."
Against the Anti-Federalist charge that the delegates in Philadelphia had overstepped their bounds and tried to establish a constitution, Madison replied in The Federalist No. 40 that the delegates' powers were "merely advisory and recommendatory."
At the first North Carolina Convention Archibald Maclaine reiterated Madison's point: "The Constitution is only a mere proposal . . . . If the people approve of it, it becomes their act." Their original intentions were not relevant, the Federalists argued, because they had only drafted a document to be endorsed by a people. If intentions were to play a role in the interpretation of the text, they would have to be the intentions of those who accepted the Constitution, not those who wrote it.
Imagine a group of writers hired by a card company, by Hallmark, say, to draft a line of greeting cards. Here it would be misplaced to interpret the meaning of any given card by asking what the makers of the card had in mind when they drafted it. What the authors had in mind matters little compared to what a person has in mind who actually makes use of (sends), say, one of their "Get Well" cards. The completed draft is, in Madison's words for the draft of Constitution, "a dead letter" until it is animated by a customer's desire to wish someone well.
By beginning the document with "We the People" the Framers had not wished to claim a greater authority for their words or to be speaking on behalf of persons not present at the Convention in Philadelphia. They were "mere scriveners or attorneys appointed to draw up an instrument." The import of the document would have to await its true animus, "it true makers," the people of the United States represented through the state conventions.
As a representative in the first Congress, Madison continued to hold the view that the delegates to the Convention were "merely drafters":
But, after all, whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in expounding the Constitution. As the instrument came from them, it was nothing more than the draft of a plan, nothing but a dead letter, until life and validity were breathed into it by the voice of the people, speaking through the several State Conventions.
It could not have been clearer to Madison that whatever understanding members of the Philadelphia Convention shared about this or that passage of the Constitution, that understanding "could never be regarded as [a] . . .guide" in an effort to make sense of it. The original intent of the Framers ought not to engage us because the document they drafted was, quite frankly, not theirs. If intentions are to count for something, they must be the intentions of the people who approved it, not the intentions of those who proposed it.
This conclusion has real consequences for arguments about original intent. If there are problems with an attempt to recover the intentions of small group of authors, meeting together in the summer of 1787, those problems are now compounded by the practical difficulties of trying to figure out what went through the minds of the representatives who attended the various state conventions. These problems aside, however, it is necessary to note that, having shifted attention away from the understanding of the document shared by those in Philadelphia to the understanding of those who eventually adopted it, Madison did not let the matter rest. He went on to stress that the meaning of the Constitution was determined by an interpretive process that continued long after the Philadelphia and State Conventions had closed their doors.
Now or Then?
In one of the first lengthy discussions in Congress over how to resolve ambiguities of the Constitution, the debate in the House over the resolution calling upon President Washington to hand over the record of Chief Justice John Jay's treaty negotiations with Great Britain, Edward Livingston of New York, who introduced the resolution, argued that original intent could not be "conclusive... because...we are now as capable at least of determining the true meaning of that instrument as the Conventions were: they were called in haste, they were heated by party, and many adopted [the Constitution] from expediency.'
When William Vans Murray of Maryland expressed his belief that where there were "doubts upon some of the plainest passages" of the Constitution it was the duty of a person "known to have been in the illustrious body that framed the instrument [to] clear up difficulties by [communicating] his contemporaneous knowledge," Albert Gallatin of Pennsylvania said he was surprised to hear a view that "the opinions and constructions of those persons who had framed and proposed the Constitution, opinions given in private, constructions unknown to the people when they adopted the instrument, should, after a lapse of eight years, be appealed to." Vans Murray wondered nonetheless why someone who had been present at the Convention did not speak up and share the understanding prevalent then with those now in the House. He had James Madison in mind in particular.
Vans Murray's speech, however, caused Madison "some surprise," saying that his or anyone else's personal impressions of "the intention of the whole body" were not likely to amount to much and "were likely in any case to conflict." But Madison's own views on this matter went beyond his recognition of the problems of historiography or of trying to ascertain the intentions of the Framers as a single body. Some years later he confided to a friend that he was concerned that his awareness of what went on at the Philadelphia and Virginia Conventions might even be a "source of 'bias' in his constitutional interpretations."
As President, Madison signed the Second Bank Bill into law even though as a representative in the First Congress he opposed the bill because he believed Congress had no constitutional right to establish a national bank. But although he had voted against the First Bank Bill, by the time he was required to sign the Second Bank Bill as President of the United States, he recognized that "Congress, the President, the Supreme Court, and (most importantly, by failing to use their amending power) the American people had for two decades accepted the existence and made use of the services of the First Bank," and he viewed this widespread acceptance as "a construction put on the Constitution by the nation, which, having made it, had the supreme right to declare its meaning."
It had long been Madison's view that "precedents - at least those derived from 'authoritative, deliberate, and continued decisions' - served to 'fix the interpretation of a law.'" In defense of the open-language of the Constitution and in response to the Anti-Federalist charge of obscurity, he already acknowledged in The Federalist No. 37 that "all new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications." The meaning of the Constitution was to be found in a continuing process of interpretation and not in some specific set of intentions injected into the text at its inception. In fact, Madison was convinced that this was the predominant view held by those who attended the Philadelphia Convention:
It could not but happen, and was foreseen at the birth of the Constitution, that difficulties and differences of opinion might occasionally arise in expounding terms and phrases necessarily used in such a charter . . . and that it might require a regular course of practice to liquidate and settle the meaning of some of them.
The Chain of Interpretations
So where might the Constitution's meaning be found? To look to the Framers' intentions is misplaced not only because the document contains evidence that its authors did not wish their specific intentions to fix the meaning of the text but because the authors held a theory of interpretation that made their intentions obsolete. They had been "mere scriveners," and insofar as the meaning of a key phrase or article remained uncertain that meaning should not be settled by retrospective consultation of their intentions but by an ongoing interpretive process. The Constitution's meaning is to be found in the history of interpretations and constitutional law rather than what the Framers originally had in mind....
How old was TJ when he said this?
Quote:"On every question of construction [of the Constitution], let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."
Quote:Time changes everything/
---Bob Wills
Brandon, that was a rhetorical question.
