I’ve always been fundamentally uncomfortable with the theory of original intent. Ever since learning about Constitutional interpretation from Professor Abraham at UVA, the idea that our Constitution should be interpreted as the people who wrote its constituent parts would have intended just did not sit right with me. And it wasn’t just because different authors had different intents in ratifying the exact same language at the time of passage. Last night, I realized why Originalism bugged me.
At its most basic, the theory of original intent for Constitutional interpretation is nothing more than an argument from authority, one of the most simple and fundamental logical fallacies. Indeed, it is a prime example of the special case of the argument from authority: the argument from antiquity.
As such, interpreting the Constitution based on original intent is building a house on a foundation of sand. All the reasoning on top of the interpretation may be consistent, and closely argued (and most of our Justices are excellent at constructing such reasoned arguments), but if the interpretation stands solely on the assertion that “the original authors meant this,” then it is assuming that the wisdom of the original authors is greater, and of more authority, than the wisdom of people today.
And if that were true, if the wisdom of the old were always better than the wisdom of the new, then it would be impossible to justify any changes to the Constitution, whatsoever! The mere fact that we have Amended the Constitution, and made our nation a “more perfect union” as a result, time and time again (27 times at last count), provides strong evidence that the wisdom of those earlier authors was insufficient, and required revisions based on new knowledge and understanding.
I’m not a lawyer, but the Constitution does not belong to lawyers and judges. It belongs to all of us. What it is, and what it means, is the property of every American, not just those with special knowledge and training. I believe, and believe strongly, that a correct interpretation of the Constitution is based not solely on what the authors intended, but also on where America stands today, and where we are in the arc of history towards justice.
But that’s just my opinion. I don’t claim to be an authority.
Proponents of “original intent” will claim that the ability to change the Constitution is part of that original intent, and as you’ve stated, the people have changed it 27 times, once to ban alcohol and once to reverse the ban. That’s their point. The people have to power and they use it when appropriate. When the Constitution was ratified, women were men’s property and had no rights. In 1920, the 19th Amendment was ratified and “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.”
Granting women the right to vote is about as much additional freedom as we can tolerate. The ERA never passed because we all know that God made women inferior to men. Eve demonstrated when she fell prey to the Devil, and then she tricked Adam. The founders new that women were second class citizens and the people know that too, otherwise, we’d have an ERA.
See? It works. If you are not protected by the original intent of the founding fathers, form a political movement and amend the Constitution. If you’re not able to do that, you are a politically correct hippie, and should SHUT THE F-UCK UP!
p.s. – I love channeling Dick Black