There is a person who comments on my blog periodically with whom I disagree various times. But, the highest compliment that I can pay is that he makes me think. He makes sound arguments. He calls me to account. He keeps me from flights of unthinking rapture in my blog posts. Recently, he again challenged me in a blog post from two days ago in which I commented that I do not believe in original intent. One of the comments he made was [edited for brevity]:
… all framers, for sure and ratifiers, unless they didn’t read it (no surprise there) from 1787 through 1992 knew what they wrote or adopted and knew exactly what they intended the law to represent and to do.
The function of the Supreme Court is to interpret congressional laws and determine their constitutionality. But if such interpretation is based on the justices personal biases then having a constitution becomes meaningless because we become an oligarchy with the third branch of government becoming the de facto law makers. This is precisely what the original framers were intending to avoid. …
I reiterate, the proper way to address these issues is by constitutional amendment. Nine amendments (11th, 12th, 13th, 14th, 16th, 17th, 20th, 22nd and 25th) changed the original Constitution, one, the 21st, negated another, the 18th. This is the proper way that a constitutional democracy should operate. …
I hope I do not misinterpret him when I say that he is arguing for a statutory interpretation of the Constitution. That is, he is arguing that the role of the Supreme Court is to interpret strictly within the guidelines set by established law, as approved by the appropriate authority (local, State, National). I would posit (and hope he comments) that he would argue that if a law does not address a certain issue that the court is constrained to say that there is no law that covers this particular circumstance, and thus the court is not able to render any decision.
For instance, last month the US Court of Appeals for Washington, DC, ruled (in an under-reported case) that the IRS had no authority to regulate tax preparers. “In the 125 years after the law’s enactment, “‘the executive branch never interpreted the statute to authorize regulation of tax-return preparers,’ U.S. Circuit Judge Brett Kavanaugh wrote today for the panel. The law ‘cannot be stretched so broadly as to encompass authority to regulate’ preparers, the court said.” Though rare, there have been cases in which a court has decided that they do not have the authority to even rule on a matter. However, those type of decisions can be almost counted without running out of fingers and toes.
Why are there not more of that type of ruling if a statutory interpretation was meant to be the original law of the land? Well, because of the Seventh Amendment in the Bill of Rights. It adds a very important dimension to court rulings that is missing in many of the arguments presented by today’s modern “original intent” supporters.
The Seventh Amendment in the Bill of Rights states:
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
This is the only place in the Constitution in which the principle of common law is specifically mentioned. However, precisely because it was one of the original amendments in the Bill of Rights, the mention of common law at this point in the Constitution makes it clear that, just like other parts of the Bill of Rights, this mention of common law was meant to correct something that was missing in the original Constitution. What was missing? Well, first let’s ask, “what is common law?”
Well, there are various explanations that can be found. Some of them are:
… the part of English law that is derived from custom and judicial precedent rather than statutes. Often contrasted with statutory law.
The principles and rules of action, embodied in case law rather than legislative enactments, applicable to the government and protection of persons and property that derive their authority from the community customs and traditions that evolved over the centuries as interpreted by judicial tribunals.
In the United States, a body of unwritten laws based on precedents established by the courts. Common law is used in deciding novel cases where the outcome cannot be determined based on existing statutes.
The third definition listed is the key one for our understanding of court rulings and for the proper understanding of the role of the Supreme Court, and subsidiary courts, in the application, not simply of law, but in the deciding of “novel cases” that reach the courts. It is a system that we inherited from England and one that the Founding Fathers ensured was enshrined in the Constitution when they realized that the Constitution, as written, needed some quick corrections before being enacted. Those quick corrections were the Bill of Rights, the very amendments that establish common law and allow the Supreme Court to have latitude in its rulings.
It is important to understand that common law was not a novel creation of the Founding Fathers. It was part of the heritage of English law, including the Magna Carta, that was passed on to us from our English heritage. We do not have a Napoleonic—or other—system of justice. Our system of law is based on both statutory law (our inheritance from the Magna Carta) and on common law (the English recognition that the laws would grow lengthy and intolerable if we did not grant the courts the right to rule on novel situations or to use common sense in interpreting the law. Common sense and common law are synonymous.
From the time in which our Constitution was approved, we have NEVER been a country that relied merely on statutory law. We have ALWAYS been a country that relied on both statutory law and common law, as spelled out in our Constitution. That does not mean that it has always been applied in a popular manner. But, it does mean that there is no Constitutional ground for claiming that the role of the courts is to merely interpret existing statutes. That was corrected in the Bill of Rights before our Constitution was ever adopted.
===MORE TO COME===
Fr. Ernesto, I am honored to read that I make you think. Such is the end of good civil dialogue. And although I have not previously stated so, you make me think as well, and this go-round much more than usual.
I think that your interpretation of my thinking on this is fairly accurate. However, I do not hold to the principle of strict ruling and interpretation of statutory laws, for doing so would create a different dimension of tyranny which we should avoid at all costs In effect, I do believe in common law and in courts having some latitude in ruling in various and sundry cases. In particular I love the definition you provided,
“In the United States, a body of unwritten laws based on precedents established by the courts. Common law is used in deciding novel cases where the outcome cannot be determined based on existing statutes.”
First let me say that I am not a lawyer, much less a constitutional scholar, but I try to be informed by reading about these things. Given my limitations, I adhere to the idea that the Constitution was written to be understood by all citizens of sound mind. Therefore, I consider folks such as ourselves to be sufficiently qualified to speak about these things.
Now, here is where two phrases come into play which make all the difference to me with regards the matter of “original intent” vs. “growing understanding”: “some latitude” and “novel cases.” The latter of the two I understand to mean unusual, uncommon, or better yet, something that the Constitution does not directly address (abortion, birth control, genetics, etc.). And certainly, when it comes to these matters greater latitude will need to be allowed as is necessary in matters of common law..
But my concern is when the courts throw out state statutes as “unconstitutional” when in fact they should be left up to states to enact. The Tenth Amendment reads,
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Therefore, I would argue that the Court was wrong in Griswold v. Connecticut in 1965 when it declared that prohibiting contraceptives was unconstitutional. In this case it created a new “common law,” the “right to privacy.” This “law” then became the rationale for Roe vs. Wade in 1973 for declaring that Texas’ (and every other state’s) ban on abortion was unconstitutional. Again, the Court violated the Tenth Amendment by sheer fiat!
One might argue that the courts should have thrown out slavery, given women the right to vote, etc., long ago. But as horrific as slavery was, and as repulsive as denying women the right to vote was, these were matters which should have been left up to the states or, as we are all thankful for, made “constitutional” through the amendment process.
There is something else which Alexis de Tocqueville noted about why this country was able to create and maintain a democracy when others had failed. He credited churches, in spite of doctrinal differences, and that Americans shared a moral consensus which made it possible to be self-governed by words on paper rather than police action. This is akin to a traffic light allowing some cars to go and others to stop for the sake of civil order (not to mention, avoiding mayhem), How can a simple green/red light stop a two-ton vehicle? Because most drivers willingly obey the signals. The same thing is true of any body of laws. Unless there is a consensus among the people that the laws are good and should be followed no words on paper will do the job.
The solution, or a major solution, rather, is to let state enact and enforce whatever laws they have on their books and let the people live in those states which laws they prefer the most. If a state’s law is genuinely unconstitutional (e.g., a state prohibits peaceful protest, free speech or religious practice), the the Court should rule against it. But if a state has a law which states that abortion is tantamount to murder and prohibits the practice then such state should be allowed to have that law and to enforce it.
There are way too many divisions in our country, and they are growing in number and ferocity. Court decisions are not only creating a oligarchy they are also creating a highly centralized and tyrannical government which, I fear and hope I am wrong, will lead to the dissolution of the Union, likely with much bloodshed. I reiterate that the best way to avoid this is to let some steam off, for now, at least, by granting states the rights guaranteed under the Tenth Amendment.
Thank you, Fr. Ernesto, for letting me share my thoughts with you. God bless you!
all framers, for sure and ratifiers, unless they didn’t read it (no surprise there) from 1787 through 1992 knew what they wrote or adopted and knew exactly what they intended the law to represent and to do.
The function of the Supreme Court is to interpret congressional laws and determine their constitutionality. But if such interpretation is based on the justices personal biases then having a constitution becomes meaningless because we become an oligarchy with the third branch of government becoming the de facto law makers. This is precisely what the original framers were intending to avoid. …
I reiterate, the proper way to address these issues is by constitutional amendment. Nine amendments (11th, 12th, 13th, 14th, 16th, 17th, 20th, 22nd and 25th) changed the original Constitution, one, the 21st, negated another, the 18th. This is the proper way that a constitutional democracy should operate. …
i hope you dont mean this applies in the united States… we are a constitutional republic .