While I'm at it, why do we so often rely on "what the framers intended" when we debate the Constitution?
First, many people don't care, because the framers were wealthy slaveowners and merchants.
Second and more important, the "framers" didn't "intend" anything. The Constitution is more or less a compromise document between some who wanted the Articles of Confederation revised, and those who wanted to establish a central mercantilist State. What Hamilton intended may not have been exactly what Madison or Morris (who actually wrote it) intended. Let alone what Mason or Sherman intended.
Further, it is not their intent, so much as those who ratified the Constitution, that should matter, at least in theory. The ratifiers, not the framers, represented "the people." But the people's "intent" is impossible to fathom. I'm sure their were many people who didn't like the Constitution but voted for it anyway as the only available option aside from disunion.
What we're left with, then, is the text itself, which is our rulebook for the federal government. You don't need to know the "intent" of the authors of, say, Scrabble rules or baseball rules in order to play the game. Much of the Constitution is quite clear, but ignored. Even the "vague" passages and meanings are quite clear to those who understand that the states were free and independent when they ratified the Constitution. But those same passages are seen as loopholes to the nationalists, justification for greater central power.
If "general welfare" means private beneficiaries of government charity, if the Second Amendment empowers the federal government to prohibit private ownership of guns, if "public use" means private use, and if "commerce among the states" means any human activity whatsoever, then the rest of the Constitution, except for elections and terms of office, is irrelevant.
Which is the way many people in power want it.
James Leroy Wilson's one-man magazine.
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The precise original understanding of a provision may be hard to isolate. But I think we can probably set some fairly narrow parameters around the range of uncertainty, and clearly rule out most of the statist "living consititution" BS interpretations, by reference to Blackstone's canons on constructions.
ReplyDeleteTo reconstruct the intent of the sovereign lawgiver, among other things, you examine the primary evil the law was intended to remedy; that requires a lot of reading in the history of the Revolution and of previous English history as understood from an Anglo-republican standpoint. For example, any reading of the Fourth Amendment should take into account the Writs of Assistance and the Wilkes affair.
You also read ordinary language as it was understood at the time, and terms of art as they were used in the statutes, case law and fundamental laws of the time.
And you rely on the promises and reassurances of the law's defenders, not the fears of its enemies, as the basis of contemporary understanding.
Legislative reporting was in its infancy when Blackstone wrote his commentaries, so he didn't mention legislative debates. But the Federalist and other pro-Constitution polemics, and federalist speeches in Elliot's Debates, are also an obvious source for establishing original understanding.
These things don't eliminate uncertainty--but they reduce the range of it considerably. At least, they make issues of original understanding a matter for reasoned discussion of the evidence, as opposed to something the Nine Demigods pull out of their collective ass.