For those interested in American constitutional history, law, and original intent debates, I would recommend Leonard Levy's Original Intent and the Framer's Constitution. This 400-page history book is daunting, I'll admit. Yet, unless one has a particularly strong interest in the detailed history of our Bill of Rights, one could easily skim over some of the very detailed chapters on the history of specific constitutional amendments and still get a good overview of constitutional history.
As the name implies, Levy's book is about the original intent of the US Constitution. The thesis, in short, is that the ideas that the framers had a universal "original intent" and that this "original intent" is capable of being discerned by later generations is a myth. What is commonly called "judicial activism," thus, is inevitable. (All citations and quotes are from the book).
1. No Such Thing As a Unified "Framer" or Ratifier Intent Existed
To begin, Levy notes that James Madison's (the "Father of the Constitution") record of the Constitutional Convention was first published 53 years after the Convention had met (1). "Thus, throughout the formative period of our national history, the High Court, presidents, and Congress construed the Constitution without benefit of a record of the Convention's deliberations" (Id.). And further, the framer's didn't even keep or publish an official record of the proceedings of the Convention. This suggested that the framers did not want this new nation and future generations "to construe the Constitution in light of their deliberations" (2).
Generally, when it came to interpreting text, the framers agreed that the text should be interpreted "according the established rules of construction" (10). These rules, of course, are as vague as they sound and capable of producing opposing results. But what is noteworthy is that, in the early years of the Constitution, those who had framed the Constitution did not appeal to their "original intent" in solving Constitutional questions. Rather, they agreed on the general text of the Constitution but were at odds with how that text applied to various real-life scenarios.
While many scholars debate over the "intent of the framers," what is often overlooked is the intent of those who actually ratified- or "passed"- the Constitution. The intent of those who ratified the Constitution, rather than those who framed it matters because, as James Madison wrote, the Constitution "was nothing more than a dead letter, until life and validity were breathed into it by the voice of the people, speaking through [the state ratifiers]" (14). Thus, the intent of the ratifiers matters more than the intent of the framers (Id.). This is a salient point as, of course, it reflects the "American" idea that the government exists by the consent of those it governs. Accordingly, the intent of those who agreed to the government should matter more than the intent of those who framed it.
Yet, the idea of a single, unified "ratifier intent" Levy argues, is also a myth. Like the intentions of the framers, "the terms of the [Constitution] may have differently impressed different people. Some drew conclusions that others repudiated.... Some may have understood its terms to strictly, others too broadly....'Nothing but the text itself was adopted by the whole people'" (15). In other words, the text of the Constitution meant different things to different ratifiers and "the entity we call 'the Framers' did not have a collective mind, think in one groove, or possess the same convictions" (294).
And, even if there were a single, unified framer or ratifier intent, it is unascertainable to us now. Drawing from available historical documents, Levy first makes the case that the proceedings of the various state conventions to ratify the Constitution "were so incompletely and poorly reported" that it makes "discerning original intent from only the state ratifying records...nearly impossible" (14-15). What accounts we do have are often "partial and mutilated" (15). Without accurate and whole accounts of what occurred at state ratifying conventions, the intent of those who ratified the Constitution cannot be determined.
2. Judicial Review and "Activist" Judges
The idea that there is no single, unifying "original intent"- and certainly not one that we could ascertain anyway- is not difficult for me to believe. People bring their own preconceptions, interpretations, and life experiences to every word and every sentence that they read. As the Constitution and, particularly, the Bill of Rights are written in often vague and abstract language it should surprise no one that the Constitution meant different things to different framers and ratifiers. Often, it can be found that those who promote the "original intent" myth do so in a manner to suggest that judges who go against a (nowadays, conservative) "original intent" analysis are "activist" judges.
Levy makes a strong case, backed up with historical evidence, that a popular legal fiction is that "conservative jurists have eschewed judicial activism" (54). Conservatives often revise history and paint Supreme Courts of old as those who admirably "suppressed their own policy preferences and impersonally decided as the law told them to.... They did not legislate; they merely discovered and applied the appropriate law to the case at hand.... They respected and enforced original intent...." (Id.). Yet, the truth is, "judicial activism has characterized the Supreme Court from its early history" beginning with the very first constitutional case decided by the Court in 1793, Chisolm v. Georgia (56).
In this case, a citizen of one state sued the state of Georgia in federal court claiming that this was allowed under the Constitution. Although the text appears to allow for this, it was generally understood by the framers and ratifiers that a state could only be sued if it had given its consent or had initiated the suit. The "activist" court, however, allowed the private citizen to sue the state of Georgia anyway. I know this case sounds boring, and it sort of is. But Georgian authorities were so outraged by this "judicial activism" that they urged death by hanging for those who executed the Supreme Court's order in Chisolm (59).
Levy goes into considerable depth with recounting examples of early judicial activism, on liberal, libertarian, and conservative issues. I encourage anyone interested in more detail to check out the book for yourself. For our purposes here, it is enough to note that because there was no single "original intent," judicial activism is inherent and inevitable in our legal system- no matter the political affiliation of the judge.
The Supreme Court has a long history of having Justices, of all political stripes, who seem to "...first choose what the outcome should be and then reason backward to supply a rationalization, replete with the appropriate rules and precedents, of which there are enough on any side of an issue to make any argument seem to respect tradition and professional expertise" (314). This fact, to me, was one of the most frustratingly obvious aspects of Constitutional Law courses in law school. Even as a 1L it was apparent that justices were capable of cloaking their pre-determined outcomes in the appropriate legalese. Looking in on the process I often wondered why and how constitutional law scholars were able to go along with the whole charade. That judges so rarely make decisions that are in discord with their "private policy preferences" only reinforces this distrust.
I think that the general public has a sense of this too. Tomorrow's continuation will elaborate on this concept and raise the question of what it is that legitimates judicial review in light of the partisan nature of most courts.
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