On a post yesterday, a contributor wrote of being in favor of the conservative ideal of original intent. As I answered him, I am not in favor of original intent. In fact, I think that any devoted Christian should run far away from original intent. Why do I say that? Well, let’s really look at the Constitution and some special clauses that are in it.
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.
Oops, the original intent of the Constitution was that slaves were less than a full person. The original intent of the Constitution was that Indians not be taxed, but neither could they vote. And, guess what? They could be moved onto reservations regardless of any opposition that they might put up. That was the original intent. No, I do NOT believe in original intent. What is incredibly sad about the Native Americans is that some of the phrases in the USA Constitution have roots in the Gayanashagowa or the Great Law of Peace of the Iroquois (or Haudenosaunee) Six Nations (Oneida, Mohawk, Cayuga, Onondaga, the Seneca and Tuscarora) which dates from before the Magna Carta of which we are so justly proud. For example, there is a very USA attitude in one of the articles of the Great Law:
Any Chief or other person who submit to Laws of a foreign people are alienated and forfeit all claim in the Five Nations.
I am sure you can recognize that attitude in our refusal to adhere to any foreign treaty that we have signed. Oops, even with the Native American tribes that we persecuted and with whom we engaged in genocidal warfare. And, no, I am not exaggerating.
The original Constitution did not force the States to allow women to vote. It took the 19th Amendment, which was not passed until the 20th century, to allow women to have the right to vote. In fact. male African-American and Native-American males had the right to vote before women did. You might wish to check out the 14th and 15th Amendments to the Constitution of the United States. No, I do NOT believe in original intent.
The Twenty-Fourth Amendment of the United States prohibits the poll tax. It was a measure used both to keep blacks from voting and, frankly, to keep any poor person from voting. No, I do NOT believe in original intent.
I do NOT believe in original intent because I believe that African-Americans should not be slaves. I do NOT believe in original intent because I believe that if we sign a treaty, we should honor it. I do NOT believe in original intent because I believe that women should vote. I do NOT believe in original intent because I believe that poor people should have the right to vote.
If you are a Christian, there are several reasons why you should reject original intent. Having said that, you can still argue that some phrases should be held to their original intent. But, in order to do so, you need to show why original intent is indicated in this particular phrase of the Constitution, but not indicated when it comes to slaves, women voting, etc., etc.
Let’s give up on original intent. Frankly, it is not something a Christian should really want to support. We need to support what is moral, whether or not it was the original intent of the Constitution.
I’m too lazy to look this up for a direct quote at the moment, but I know I’ve read at least one founding father who wrote that he in fact expected, he assumed, that the nation would need to revisit the Constitution every generation or so to adjust it as needed. Of course, that can’t be done willy-nilly, and we’re perfectly capable of adjusting it from one terrible intent to another just as terrible. But this “original intent” thing is obviously an impulse completely wedded to and growing out of American Protestant religious culture, specifically Calvinism. And the Constitution ain’t Scripture.
Stella, it’s not just Protestants and Calvinists who believe or even form the majority of “original intent-ers.” Whereas I don’t have research on this I have read from folks from various faiths and no faith at all who believe that he Constitution was intended to be read according to the intent of the framers, and that the proper way to change it is to amend it, not interpret it to mean something radically different from what it says.
The proper function of the courts is to interpret what it says, not invent something based on their own likes and dislikes.
Of course you are right, but what I meant (and didn’t take the time to make clear) is that today’s conservatives’ adherence to their concept of original intent is one feature, among many, of American culture that is very much steeped in and shaped by American Protestant religious culture. It’s the water we swim in in this country, and you don’t have to be a religious Protestant to hold the view of original intent that we’re discussing. It’s particularly apparent in this matter of how to interpret the Constitution because the belief in trying to discern and follow the authors’ original intent is straight out of a certain dominant strain of Evangelical Protestant biblical scholarship.
Original intent is not a universally agreed-upon thing, any more than any other issue is. The whims of a growing-understanding-ist court are no less arbitrary than the interpretations of an original-intent-ist court.
Fr. Ernesto, I appreciate your thoughts on this very important issue and I am glad that you dedicated an entire post to it. I will restate my reply to your reply to my comments from yesterday’s post with regards “original intent.”
The framers knew that the Constitution was not perfect and would need to be amended in order to address or otherwise correct flawed laws. Two of these you yourself correctly stated, namely slavery and women’s suffrage. The 13th-15th amendments corrected slavery, and the 19th amendment gave women the right to vote. Those things were corrected according to the “original intent” of the framers, which was to amend the Constitution, not reinterpret it.
When the Constitution is interpreted based on “growing understanding” then we are at the whim of whoever constitutes a majority on the Supreme Court. In such a case, as we are now seeing, the Constitution becomes meaningless and we are at the whim of whoever gets appointed to the Supreme Court. We then cease to be a democracy and become an oligarchy.
I see nothing good and only evil arising from this.
I can see a twofold problem in your answer. One is that you have a definition of original intent that is somewhat different than the one that is typically espoused by those who use the phrase. Their meaning is a bit more akin to what I was opposing, which is that it means that we need to interpret the Constitution in the same way it would have been interpreted back then. That, of course, assumes that all the Founding Fathers believed in the same interpretation, whereas the evidence shows that the Founding Fathers reached a series of compromises, of which the Bill of Rights was one.
The second problem is that, from early on, American jurisprudence saw the Constitution as a document intended to allow for interpretative application. Thus, one of the earliest Supreme Court decisions was that the intent of the Constitution was that the Supreme Court had the right to strike down even State laws. From the beginning, court decisions did not simply apply the law in a legalistic way, but interpreted the law to the circumstance. The few decisions in which the court said that they could not rule on an issue were early and rare decisions. The court quickly decided that they could rule on every issue.
Thus, what you call growing understanding has been the way in which the court has essentially operated since the Founding Fathers were still alive. And, they did not challenge the court for functioning in this way.
I believe that activism in the courts has been growing over the years since the founding of the Nation. Whereas it’s true that the Constitution, original and as amended, was a work of compromise, everyone involved in its framing, whether that be the framing of the original 1787 document, the Bill of Rights (the first ten amendments), adopted in 1791 or the following 17 amendments up to the 27th amendment, adopted in 1992, all framers, for sure and ratifiers, unless they didn’t read it (no surprise there) from 1787 through 1992 knew what the 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 defacto law makers. This is precisely what the original framers were intending to avoid.
One such case of expanded judicial activism was Griswold v. Connecticut in 1965 where the justices voted 7-2 to strike down Connecticut’s laws against contraception on the grounds that it violated the “right to privace” as “implied” in the “penumbras” and “emanations” of the Bill of Rights. Dissenting justices Black and Steward argued that the majority’s interpretation was, in effect, beyond their intended meaning, and that although Connecticut’s law against contraception was silly, it was nonetheless constitutional.
So, in effect, seven justices overstepped their constitutional mandate of interpreting the law and instead created a “right to privacy” which, in 1973, became the basis for the infamous Roe vs. Wade decision. And now we are contemplating and arguing the right of anyone to marry anyone or, soon to follow, anyones or anything, because somehow, somewhere such rights exists in the Constitution.
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.
One last thought… I no longer believe that America is a Christian nation nor that it ever was one. But the Constitution as created in 1787 and amended with the Bill of Rights in 1791 does reflect some core Christian values. Not least of these is that natural human depravity which inevitably lead to tendencies of government towards tyranny, must be safeguarded against. The very division of our government into executive, legislative, and judicial branches reflect this conviction. When one branch of government steps out of its constitutionally prescribed parameters, as I believe the courts do when they create laws, then tyranny of the majority over the minority is inevitable.
In 1831 Aexis de Tocqueville was sent to America by France to study our prison system. He did that but mostly speculated on the future of democracy in the United States and possible threats to and dangers of democracy. He was concerned that democracy would degenerate into “soft despotism” and tyranny of the majority. He also wrote much about the role of religion in American society and government and noted that in the United States the separation of religion from government was established in a way that all parties found agreeable. By contrast, in France there was an unhealthy antagonism between the two. Aexis de Tocqueville might as well have been a prophet, for what I see happening now with the tyranny of the courts and unhealthy reactions from churches echo his concerns. And it is leading us to anarchy, just as it happened in France.
There is hope, of course, but it will need to begin with churches focusing on the gospel and not theistic moralism and legislation thereof. And when I say “gospel,” I mean the full gospel of the kingdom as described in the Gospels and lived out by Christ. This begins with redemption by Christ’s work on the cross, that is first and foremost and the fountain which waters everything else the church does, and to be followed by social justice.
@CalvinCuban your reply is long enough that the response merits its own post. Would you mind if I wait until I get home tonight to reply to your reply. GRIN.
Nice straw man.
Nice unexplained dismissal.
Bless you. And bully for you on this one, Brother Ernesto! May I share the link to this discussion with one of my arch conservative correspondants?
You are welcome to share it.