Original Intent

I'm one of those people who are reluctant to put words in someone else's mouth. It's a real problem. Straw men are so much easier to knock down than real ones, and they don't fight back. But my inclination is to take people at their word.ⁱ It's not always easy – not because I disagree with them but because I don't always know what they said. So if I want to consider and deal rationally with those words, I'm at a disadvantage.

There was a time when I didn't care what their opinions were; I knew how things should be even if they didn't. Their words were interesting, but only from a historical point of view. I and my contemporaries were as smart as they, and we could reach logical conclusions without their help.

It didn't take long to realize that many others held the same point of view. The only problem was that different people had different “logical conclusions” concerning the same sets of facts. The situation was chaotic – even anarchic at times. Even when the statements made by our founders seemed clear and reasonable, there were many who ignored them because they knew better. When they thought changes were needed they were quick to suggest them.ⁱⁱ Even so, they seemed eager to concede that their ways might not be the best for everyone. At least not for those from other cultures. Right and wrong depended on the teachings of those cultures – they were not absolute. That was my view when I was young.

But as I grew older my thinking changed and it became clear to me that some things were absolute. And I knew what they were. Interestingly I found that many of the truths which I knew to be valid were stated in the Declaration of Independence, and in the context of that declaration and the conditions it described the Constitution seemed, for the most part, like an eminently sensible document. The “Founding Fathers” were on to something, and the idea of radically changing it, whether through legislation or the courts,ⁱⁱⁱ was both a denial of common sense and of our heritage. It's original meaning, and their original intent, should, for the most part, hold sway.

It didn't take long, however, to recognize that we often lack understanding of what that intent was.^iv Although some of the participants took notes and explained what they had in mind, the keeping of records was discouraged, so our knowledge is limited. It's clear, though, from the writings of the time,^v that the Constitution didn't mirror the intent of all the participants; it was a compromise document. And some of the words they used in the eighteenth century had different meanings then – not the ones they have now. Additionally, perhaps some of the words are misprints or other kinds of errors.^vi

What also governed their decisions were the conditions of the time: the conditions they had endured under the English King.^vii That was the context which dictated their intent.^viii

Thus extensive reading and preparation were necessary to understand what the intent was, but it was worth it. And a great appreciation of their foresight resulted. It became clear that their debates resulted in nuanced language and principles that could be applied to most predictable conditions not just those existing at the time but ones that would arise later to test our system. It was also apparent that in some cases judicious – sometimes judicial^ix but not always so – interpretation of our founding documents would be necessary.^x And when such clarifications now emerge – whether through the passage of new statutes or the (re)interpretation of old ones, they are the law of the land. Moreover, the founders realized that there would be a need for amendment^xi of the original document and they provided for it. It's difficult but possible.

Also confusing the issue is the question of whether a particular view expressed then related to a specific problem faced at that time or whether its author saw it as a general principle. How would he apply it, if at all, to a new but, at least from our perspective, analogous situation? Does our extrapolation of the principle faithfully reflect what he would have thought had he lived now?

But an important question remains: “So what?” That was then this is now. Should we in the twenty-first century be bound by eighteenth century thinking? Should we be bound by agreements to which we were not signatories?

Fortunately, however, those are easy questions. The answer is “Yes!” To both of them. If we consider those documents and concepts erroneous we should change them, difficult as that may be. But we should not ignore them. Our society is based on the rule of law, and the rulebook is an old one. We cannot flout our heritage because we didn't make it, any more than we would refuse an inheritance because we didn't earn it.

For me, then, it is clear that the law is the law, and like it or not^xii we are bound by it. Given the opportunity, I would favor reliance on the words of the founders to the extent possible, with interpretation limited to unmistakable analogies unless we, the Founding Fathers of our generation, decide otherwise by altering the document on which our society is based.

Next episode: “An Offer You Can't Refuse” – Try at your own risk.

PS.  Tuesday, November 4th is election day.  Don't forget to vote.

I        In this case my primary – but not exclusive – interest will be in the words of our Founding Fathers. I'll be referring to them when I don't specify otherwise.

ii       In some instances, however, they had a low tolerance for change. From their perspective – and I am in full agreement – it was only fair if they could pass on their property to their children when they died. It might be reasonable to give public funds to satisfy all sorts of interests – whether the poor, the arts, snail darters, or whatever – but not their money. (They didn't realize that the “public funds” were their money – money whose free distribution is something which, from my perspective, needs to be rethought.)

iii      Or by Presidential decree.

iv      The same is true of Shakespeare and other literary figures. Often we need explanatory notes if we are to understand what they meant. And there are times when the expositor reads (his own) ideas into their words, ideas that, in all likelihood, were never there, attributing them to the author's unconscious, and praising their prescience.

v        Expressing ideas as disparate as the ones we have now.

vi       That's the explanation often used in rabbinical writings. Since there is a general principle in Jewish law that the words of earlier authorities cannot be changed, more recent expounders have to “understand” their words in a way that might not be obvious. They “correct” “erroneous texts” and interpret what their predecessor “meant,” which may be very different from what he said, or they describe unlikely scenarios or conditions that circumscribe the effect of his ruling.

vii      More about the King and the Constitution in a future essay.

viii     Our current context is very different but that doesn't invalidate the Constitution.

ix       In Marbury v. Madison the courts arrogated to themselves the power of the last word in most cases and, for better or worse, that action was not contested.

x        The same is true in other areas. For example, reading religious texts without explanation and interpretation can be difficult. While interpreters often disagree, their discussions may unlock ideas whose presence will have been unexpected. They might also surprise earlier authorities – but that doesn't disqualify them. If those earlier authorities didn't anticipate changed conditions that were in their future, they wouldn't have guessed at the questions they might raise. We can only hope that their wisdom provided enough guidance for us to answer those questions while remaining true to their principles and intent.

xi       In fact, the Bill of Rights – the first ten amendments – was a precondition for ratification by many states.

xii      And there's much I don't like.