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Determining "Original Intent"
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Determining "Original Intent"The changes in the Constitution over time also problematize originalist interpretation. When the Thirteenth, Fourteenth, and Fifteenth amendments granted African Americans citizenship, all of the rights given to citizens by the original Constitution and Bill of Rights then applied to these new citizens on the same terms. Bluntly put, the original framers never intended to grant these individuals rights. It can be argued that we ought not value the ideals of racists and of the original intent of a racist document. Even if we do consider the so-called original meaning of these documents, how are we to reconcile these different framers’ intentions? It seems inconsistent with the original intention of the constitution to simply transplant the rights meant for the original citizens (i.e., white men) upon all citizens. Time is also an interesting factor in the consideration of an example provided by the most recent amendment to the Constitution, which provides that “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.”35 It was first ratified in 1789 by the state of Maryland, but didn’t take effect until New Jersey became the 38th state to ratify the amendment in 1992. 36 Under an originalist interpretation of the constitution, what meaning should the Supreme Court read into the amendment? Even supposing that each state took perfect records of their ratification proceedings, it would be extraordinarily difficult to create a consistent interpretation of the amendment’s original intent. While the meaning of this particular amendment relatively self-evident, the problems raises valuable questions about originalism’s viability. Who does the originalist mean by a framer of the amendment: The literal author of the amendment, the Congress that proposed it, the ratifying legislatures of the states, and the voters who elected each of those bodies? Each of these could be considered “framers” in some sense. Another problem with originalist readings of the constitution is the nature of the Constitution’s language itself. The provisions of the Constitution, for the most part, are general rather than specific. The Eighth Amendment, for example, prohibits “cruel and unusual punishment” rather than outlining a list of punishments that are unacceptable. Originalists might understand this as simply a question of economy, as it would be nearly impossible to list out every conceivable type of torture meant to be banned by the amendment. They would contend that the list of impermissible punishments ought to remain fixed by the understanding of the amendment when it was adopted. Others, however, argue that the lack of a definite list points to an understanding of the terms “cruel” and “unusual” that must change over time, as standards of acceptable governmental provision change. This was been recognized in a decision by then-Chief Justice Earl Warren in 1958, “ . . . that case that the words of the Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”37 As such, it would be expected that the Eighth Amendment would continue to be interpreted more broadly where the fewer punishments would be allowable as time progresses. This would make the original meaning of the term “cruel and unusual punishment” irrelevant. Other Constitutional provisions are meaningful precisely because their effect changes over time. The commerce clause, whereby the federal government is given jurisdiction over the regulation of interstate commercial activities, has vastly expanded over time. This is largely because the business is now more frequently conducted across inter-state lines. To interpret the clause as narrowly of as it was originally intended. The great flexibility of the clause seems to be its defining characteristic. Few would disagree with this interpretation of the commerce clause. The disputed question, however, is to what degree that sort of reading of the commerce clause ought to be instructive for reading other Constitutional provisions. Individual Rights and EqualityOther Constitutional questions have specific controversies that impact the originalism debate. Among the most controversial of all constitutional questions concerns the right to privacy. The Constitution never uses the word “privacy,” but that hasn’t stopped the Supreme Court from crafting a Constitutional right based upon the concept. The first Supreme Court case explicitly recognizing a general right to privacy (in the sense of the right to autonomous action) was Griswold v. Connecticut.38 It ruled that although there is no right to privacy explicitly mentioned in the Constitution, there is a right to privacy implicit in the rights explicitly catalogued by the document. As such, there is a more general zone of individual privacy that extends beyond the specific provisions: The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents' choice -- whether public or private or parochial -- is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights. … The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. … The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."39 This constitutional reading conflicts with an originalist understanding of Constitutional interpretation. An originalist would argue that had the framers intended for there to be a right to privacy, they would have put in the text of the Constitution. This objection to a non-textual right to privacy points to originalism’s pragmatic problem of de facto support for political conservatism. Arguably, the Supreme Court’s wisest and most far reaching decisions were only possible when it departed from an originalist reading of the Constitution. Decisions like Brown v. Board of Education40 (overturning racial segregation in public schools), Roe v. Wade41 (granting the right to abortion), and Romer v. Evans42 (overturning Colorado’s Constitutional amendment banning local sexual orientation nondiscrimination policies) were all predicated on an expansive reading of the rights accorded by the constitution than would have been made at the time of its writing. In Brown, Chief Justice Earl Warren argued that the scant historical documentation of the understanding of the Fourteenth Amendment’s affect on education made it impossible to interpret the amendment from a historical perspective. He wrote, “public school education at the time of the Amendment had advanced further in the North, but the effect of the Amendment on Northern States was generally ignored in the congressional debates. … As a consequence, it is not surprising that there should be so little in the history of the Fourteenth Amendment relating to its intended effect on public education.”43 This, among other considerations, allowed the Warren Court conclude that: In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.44 Thus, it was no longer the framers’ understanding of the amendment which controlled the meaning of the constitution, but the modern implications of the underlying principles of the document. By looking at the document in a contemporary light, the court was able to consider new legal understandings of the amendment. For example, it considered sociological evidence of the detrimental effects of segregation on African American children. Under a originalist understanding of constitutional interpretation, such evidence would be less relevant to the ultimate question. Adopting a dynamic reading of the constitution allowed the court to “conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”45 It is questionable whether such a conclusion would be possible a under the logic of originalism. As the Plessy decision upholding separate but equal proves, the Court’s interpretation of the meaning of the Fourteenth amendment had not always been so progressive. Similarly, Roe and Romer depart from an originalist reading to create a more expansive sphere for individual rights. Justice Antonin Scalia dissented from the majority opinion in Romer. He argued that the Supreme Court, through the unilateral use of its judicial fiat, arbitrarily made the law of the land that “opposition to homosexuality is as reprehensible as racial or religious bias.”46 This, Scalia argued, violated the fundamental tenets of democracy: Whether it is or not is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and to the preferential laws against which the amendment was directed). Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that "animosity" toward homosexuality is evil. [Romer] has no foundation in American constitutional law, and barely pretends to. … Striking it down is an act, not of judicial judgment, but of political will.47 Objections to the anti-democratic nature of Constitutional interpretation is one of the strongest arguments in favor of originalist constitutional reading. It is widely noted that the judicial branch is the least democratic of the three branches, because the federal judiciary is appointed rather than elected. This case is instructive in that regard: six unelected judges overturned the decision of 54% Colorado voters. But majoritarianism is not the sole value of American government. Few would argue that the Jim Crow laws—even if popularly agreed to—would be “democratic” or just insofar as they singled out a racial group for discrimination. The function of these decisions is to circumscribe the ability of the majority to discriminate against disliked minorities. The ultimately contingent nature of the act of Constitutional interpretation was noted in the Court’s preface to Roe: "We bear in mind, too, Mr. Justice Holmes' admonition in his now-vindicated dissent in Lochner v. New York (1905): "[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States."48 The court was predicting the arguments from opponents of their decision concerning the vast changes in Constitutional interpretation over time. If we are to accept the contention that a document could have changing contextual meanings, what could be identified to give the document any meaning? One solution to this difficulty is to point to broad values that the Constitution upholds. In addition to be an intuitively appealing connection to Lincoln-Douglas debaters, the value approach proved fundamental for much of the most important Constitutional jurisprudence of the twentieth century. Justice Louis Brandeis made one such connection in relation to the Fourth Amendment’s implicit valuation privacy in a 1928 dissenting opinion: The makers of our Constitution … recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual … must be deemed a violation of the Fourth Amendment.49 In this case, Brandies focused not upon the particular provisions of the Fourth Amendment, but on the underlying values that it upheld. Like the Court as a whole in Brown, Roe, and Bowers, Brandies believed that the Constitution held meaning that went far beyond the particulars of its text. Conclusion Lincoln-Douglas debaters faced with the prospect of arguing against originalism should force their opponents to defend the practical political implications of adopting that understanding of the Constitution’s meaning. As these examples show, often times the Supreme Court has used expansive readings of the constitution combined with its powers of judicial review to formulate progressive protections for the rights of minorities. Would valuing an originalist interpretation allow those same decisions to be made? If not, what realistic alternative is there to provide for minority rights other than expansive judicial readings of the constitution? As Colorado’s Amendment 2 proves, often times the majority is more than willing to suppress the rights of the minority. Obviously, it would be even more difficult to fashion a national super-majority to protect the rights of these same minorities.50 Even if such a super-majority were fashioned, constitutional provisions could never contemplate every conceivable contingency requiring legal protection. This may be the strongest reason to reject the originalists’ constitutional reasoning. There are many lines of argument with which a debater can attack constitutional originalism. Whether one prefers to use theoretical objections or practical considerations to argue against the interpretive philosophy is largely a matter of personal preference. In either case, there are ample arguments for Lincoln-Douglas debaters to draw upon to answer originalism. 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