In the previous posts in this series I described the three types of textual arguments that people can make to interpret the Constitution: plain meaning, canons of construction, and intratextual arguments. These are the various techniques that can be employed to interpret the written words of the Constitution. But it is also possible to go outside the text and search for meaning in the documents and events surrounding the writing and adoption of the document.
When the language of the Constitution is unclear, it is appropriate to look outside the document for evidence of what the text was supposed to mean. More surprisingly, even when the words of the Constitution seem to be clear, we may learn that the framers did not agree about their meaning. To properly interpret the Constitution it is necessary to consider not only its text but also evidence of the framers' intent.
There is a rich historical record of the intent of the framers. We have Madison's notes of the proceedings of the Constitutional Convention. We have the Federalist Papers, which are a series of editorials authored by Alexander Hamilton, James Madison, and John Jay, for the purpose of persuading the American people to ratify the Constitution. We have the records of the various state ratifying conventions considering the adoption of the new Constitution. We have the letters and speeches in which the framers privately and publicly expressed their views about the meaning of the Constitution. And the historical record is not limited to those who supported the adoption of the Constitution. Contrasting views are informative as well, by throwing the views of the framers into a sharper perspective. The "Letters from the Federal Farmer" opposed the Constitution, and the Federalist Papers were published primarily in response to these popular editorials.
Some of the most powerful evidence of the intent of the framers consists of the history of the times. Most of the framers had fought for independence from the British, and the Constitution must be interpreted in light of what they wished to retain and what they wished to reject from the British model of government. In addition, from 1781 to 1787 America was governed - badly - under the Articles of Confederation. The framers reformed the government and adopted the Constitution to cure the weakness and confusion that we suffered from under the Articles. The meaning of the Constitution is clarified when we consider how the Constitution differs from the British government and Articles of Confederation and why the framers made those changes.
"Original intent" is an important interpretive tool, but there are some problems with this method of analysis. Whose intent matters? Who counts a "framer?" Was it every American alive at that time? Only those who were politically active? Only those who supported the adoption of the Constitution? Even among the supporters of the Constitution, who counts? Does Madison count more than Hamilton, when they disagree about the proper allocation of power between the Congress and the President or between the federal government and the States?
On a more philosophical level, is it even possible to speak rationally about the intent of more than one individual at a time? Does group intent exist? Furthermore, by "intent" do we mean "conscious intent" or do we also count "unconscious belief" - the unchallenged assumptions, worldviews, and cognitive schemas that many of the framers possessed. This becomes particularly crucial when we are faced with interpreting the Constitution on questions of race, gender, and religion.
Finally, as I am sure you have anticipated, how are we to properly consider the intent of the framers when our society has changed so dramatically since 1787? We have grown from a small and weak coastal country into a continental nation and global superpower. We have evolved from a simple agrarian society to one that has a complex web of manufacturing, financial, and service industries. We were, at the founding, a relatively homogeneous white, Prostestant country, and we are now a racially and religiously diverse nation. Even if we are successful at identifying the intent of the framers as it related to their time and their society, how are we to apply this information in interpreting and applying the Constitution to the situations that we face? Is the Constitution a "living document" as some have claimed, or should it be "strictly construed" in as close a reflection as possible of the society that existed in 1787?
To answer this question we must consider how the framers themselves would have wanted us to interpret the Constitution. Did the generation of the Revolution intend for the meaning of the Constitution to be static or did they want each succeeding generation to interpret the enduring principles of the Constitution - liberty, equality, fairness, tolerance, and limited government - in light of changing circumstances?
In the next posting I will describe "judicial precedent" which is the third major category of legal argument.
Wilson Huhn is a Professor of Constitutional Law at The University of Akron School of Law and the author of the book The Five Types of Legal Argument. This is the fifth in a series of essays describing how people can come to different conclusions about the meaning of the Constitution.
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