Over at Obsidian Wings, I made the following two statements:
Guess which statement caused a ruckus!
Publius has a post discussing theories of constitutional interpretation. This, of course, means that a fight (but since its Obsidian Wings, it’s a very genteel, intelligent fight) over original intnet and its imitators has broken out. My dislike original intent as an idea is pretty well documented, so I wont really go back over those details. But on thing did strike me reading the comments is just how much disregard for the words of the Constitution OI entails, at least when discussing the 2nd Amendment.
Let me preface this was saying the obvious: I am not a law professor or a legal scholar. I am taking the positions of the commentators in the OW thread as a reasonable approximation of how OI is understood in the everyday world. I may be doing the theory a disservice by doing so, but I still the discussion is worth having becasue, as I said, I don’t think it unreasonable to discuss the way the theory is understood even if that general understanding does not map precisely to the academic understanding of the theory.
The main thrust of Publius’ post is about how he thinks textual ambiguities should be handled with the 2nd Amendment as a good example of such ambiguity in the Constitution. This, of course, lead to a discussion about why or why not original intent is the best method of resolving such ambiguities. the argument is, in short, that looking at what the founders meant when they wrote the words was the best way to determine that the text in question should mean. Put aside for a moment whether or not that such an understanding is reasonably possible, and think about the implications of that position. The Founding Fathers were not, as a general rule, stupid men. But OI seems to assume that they were. the ambiguity in the Constitution is there becasue the Founding Fathers put it there, deliberately. Every inch of that document was haggled over and written and rewritten many times until langauea that could be accpeted by tthe country was hit upon. That language, that ambiguity, was put there on purpose. They could not come to a clear agreement, a clear understanding, so they wrote words that paper-overred the differences and they did so consciously.
OI proponents seems to be saying, “well, never mind that. let’s see what they really meant!” What they really meant is right there in the constitution: we could not come t a clear agreement on this, so here is the only compromise that would work. There very existence of textual ambiguity is, in many if not all cases, is a direct refutation of the prime notion behind original intent: the Founders did not have a clear positioned accepted by all of them and so any attempt to find such a position to settle questions of textual ambiguity is, by definition, flawed. The best you can do is something like “well a majority thought …” but that avoids the question. if the majority really thought X, then why is the text not written that way? All that version of OI is doing is refighting the same battles that picking which historical faction they wish had won.
In addition to all the other problems with OI, I think that attitude does a great disservice to the Constitution. The Founding Fathers made many compromises and deliberately left ambiguous terms in the Constitution. They trusted their descendants to interpret those terms wisely. They left room for society to change, grow and come to consensus on issues that they themselves could not right in the Constitution. Going back to them to settle disputes they they themselves chose not to settle when they wrote the document seems to me to be deliberately turning our back on the Constitution itself.
Royalty was like dandelions. No matter how many heads you chopped off, the roots were still there underground, waiting to spring up again.
It seemed to be a chronic disease. It was as if even the most intelligent person had this little blank spot in their heads where someone had written: "Kings. What a good idea." Whoever had created humanity had left in a major design flaw. It was its tendency to bend at the knees.
-- Terry Pratchett, Feet of Clay
