Contrary to the present day fetish among the legal intelligentsia, “judicial supremacy” through “judicial review”—the notion that courts, and particularly the Supreme Court of the United States, are the ultimate and unreviewable interpreters of the Constitution—is a delusion. The undeniable historical and legal realities are that WE THE PEOPLE, not “we the judges,” enacted the Constitution, and that “[t]he power to an act carries with it final authority to declare the meaning of the legislation.” (footnote 3) At the time the Constitution was ratified, Blackstone’s Commentaries on the Laws of England (footnote 4) “had been published about 20 years, and it has been said that more copies of the work had been sold in this country that in England, so that undoubtedly the framers of the Constitution were familiar with it.” (footnote 5) Blackstone taught that “the law, in the opinion of the judge are not always convertible in terms or one and the same thing; since it sometimes may happen that the judge may mistake the law”—and that, “whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society itself: there is not upon earth any other tribunal to resort to.” (footnote 6)This gives no credence, let alone comfort, to the idea that WE THE PEOPLE in the late 1700s could have believed on any plausible legal ground that Justices of the Supreme Court would be infallible expositors of constitutional law, or that their pronouncements, no matter how erroneous or even fraudulent, would bind WE THE PEOPLE themselves, and be capable of being overridden only by amendment of the Constitution. And the actual history of “judicial review” (or perhaps more accurately put, the absence of any such history) in America during that era proves the point beyond cavil. (footnote 7)
Constitution: Rule of Legal Construction
“ORIGINAL INTENT” OR “ORIGINAL MEANING”
Constitution: Rule of Legal Construction: “Original Intent” or “Original Meaning”
- ‘Original intent’ does not attempt to draw from the personal beliefs of individual framers of the Constitution.
The rule of legal construction that WE THE PEOPLE employed in the late 1700s (and must, absent amendment of the Constitution, continue to use today) is “original intent” or “original meaning.” “Original intent” does not attempt to draw from the personal, perhaps idiosyncratic, beliefs of the individual framers who participated in the federal convention of 1787 the meaning of constitutional provisions. Because, as with any legislation, “it is impossible to determine with certainty what construction” the framers as a whole put upon—or, more importantly should have put upon—the Constitution, simply “by resorting to the speeches of individual[s],” (footnote 1)those being “so often influenced by personal or political considerations, or by the assumed necessities of the situation.” (footnote 2)besides, the Framers themselves constituted a decided minority among the delegates to the State conventions that ratified the Constitution, let alone among WE THE PEOPLE by whom those conventions were chosen and influenced, and for whom they spoke.
1.) United States v. Trans Missouri Freight Association, 160 6U.S.290, 318 (1897). Accord, United States v. Wong Kim Ark, 160 U.S. 649, 699 (1898).
2.) Downs v. Bidwell, 180 U.S 244, 254 (1901).
- At the founding of the Republic the doctrine of ‘original intent’ was already hundreds of years old.
“Original intent” poses the question: What would the Constitution have man to a typical, educated American conversant with Anglo-American law in the late 1700s?
To answer this question, “original intent” turns to the only objective evidence WE THE PEOPLE have today—indeed, the only objectiveevidence WE THE PEOPLE had then: namely, the actual language of the Constitution, then-contemporary definitions and usages of words and phrases pre-constitutional legal precedents, then current legal and political theory, and Anglo-American history. As Blackstone taught:
The fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time of the law was made, by signs most natural and probable. And these signs are either the words, the context, the subject matter, the effects in consequence, or the spirit and reason of the law. (footnote 1)
Thus, as Blackstone evidences, this approach is not anachronistic. Indeed, at the founding of the Republic the doctrine of “original intent” was already hundreds of years old. (footnote 2) out of necessity, as well as familiarity, “original intent” became the interpretive method of the Framers who drafted the Constitution, of WE THE PEOPLE who ratified it, and of the first national governments that applied it. For what rule of construction could Americans have employed to interpret the newly ratified Constitution other than to ask what it meant to them at that time, by reading its words and their then current linguistic, legal, political, and historical contexts? No judicial, legislative, executive precedents under the Constitution existed upon which WE THE PEOPLE could draw. No legal sophists had yet popularized the fantasy that the Constitution, as a supposedly “living” document, was capable of protean meanings that would “evolve” over time in response to difficult political, economic, and social circumstances—and, if they had, their imaginings would have been irrelevant to the issue of what the Constitution meant then and there, before any supposed “evolution” took place. To serve its purpose, then, the Constitution had to be interpreted and applied at that moment according to some generally knowable and fixed meaning—a meaning that every legally literate individual in the United States doubtlessly presumed to exist in, and to be capable of elucidation from, the Constitution’s text itself, read in the context of the times.
(i) inasmuch as Americans of that era were thoroughly familiar with “original intent,” the framers must have employed “original intent” when they composed the Constitution, and WE THE PEOPLE must have utilized “original intent” when they ratified it, because otherwise no one could have known with any semblance of surety what the Constitution meant; and
(ii) inasmuch as “original intent” could have supplied a construction of all the Constitution’s provisions, as everyone at that time must have presumed—then “original intent,” by practical necessity and historical and legal absence of any alternative, must be the exclusive means of interpreting the Constitution, not just from the late 1700s and early 1800s but for all time. (footnote 3)
1.) 1 W. Blackstone, Commentaries on the Laws of England (Amer. ed., 4 Vols. & App., 1771 – 1773). Vol. 1 at 59.
2.) See, e.g. Berger, “Original Intention in Historical Perspective,” 54 George Washington Law Review 101 (1986).
3.) See E. Vieira, Jr., How to Dethrone the Imperial Judiciary, San Antonio, Texas: Vision Forum Ministries, 2004, page 66-68.
- ‘Original intent’ starts with the Constitution's ‘intent,’ which must be derived from its words.
“Why not assume that the framers of the Constitution, and the people who voted it into existence, meant exactly what it says?” (footnote 1) rehearsing this exhortation would be trivial, were it not that Justices of the Supreme Court, again and again in their opinions, have substituted for the Constitution’s actual verbiage their “own verbal formula[s”] in order “to reshape the Constitution in accordance with predilections of what is deemed desirable.” (footnote 2)
Thus, the Supreme Court has traditionally recognized—and, perhaps surprisingly, has never denied– that the framers of the Constitution, writing for WE THE PEOPLE, employed words “in their natural sense”; (footnote 3) in their “natural and obvious sense”; (footnote 4) in their “natural signification”; (footnote 5) with their “natural meaning”; (footnote 6) with their “normal and ordinary . . . meaning”; (footnote 7) with the meaning they had “in common use,” (footnote 8) in the “common parlance of the times,” (footnote 9) or in “ordinary acceptation”; (footnote 10) according to “ordinary and common usage”; (footnote 11) in a “since most obvious to. . . common understanding”; (footnote 12) and, generally, in their common sense (footnote 13) and “plain meaning.” (footnote 14)
“[N]atural signification,” “ordinary and common usage,” and “plain meaning” refer, of course, to what the words import in the language in which they are written. Thus, on it’s face the Constitution prescribes the official national language of the United States to be English. (footnote 15)
“[N]atural signification,” “ordinary and common usage,” and “plain meaning” also necessarily imply that the words have some ascertainable, generally accepted meanings. That is, there can work within the Constitution know ineradicable vagueness. Indeed, if there did, the Constitution would be pro tonto no “law” at all. For a statute written “in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law,” (footnote 16) but history attests that “the framers of the Constitution were . . . Practical men, . . . prescribing in language clear and intelligible the powers of the government was to take.” (footnote 17)
“[C]lear and intelligible” to whom? To WE THE PEOPLE of the late 1700s. Neither the Framers who composed, nor WE THE PEOPLE read and ratify the Constitution could predict whether or how the particular words and phrases they used and approved—because they understood them in particular senses—might change (or be claimed to have changed) in meaning in the dim and distant future. Indeed, operating on the basis of “original intent,” they must have presumed that the Constitution’s words and phrases, no matter how much their denotation’s and connotations might change in other contexts and for other purposes, would nevertheless always remain the same for the purpose of interpreting and applying the Constitution—that is, they would display a legal fixity of meaning. For that reason, proper construction of the Constitution—as the Supreme Court has traditionally held—must determine “[w]hat . . . those who framed and adopted it understood [its] terms to designate and include” (footnote 18)— “that sense in which [the words were] generally used by those for whom the instrument was intended,” (footnote 19) the common understanding “when the Constitution was adopted,” (footnote 20) “the common parlance of the times in which the Constitution was written,” (footnote 21) “according to their excepted meaning in that day,” (footnote 22) and “in ‘a sense most obvious to the common understanding of the time.’” (footnote 23) note the emphasis here on “common” parlance and understanding—not the gnosis or intuition of a narrow political, judicial, academic, intellectual, or other elite.
Because the Constitution’s words and phrases must be understood “according to their accepted meaning in that day,” that certain of them may have developed different meanings over time is inadmissible as an argument for construing the Constitution. For this particular procedure would amount, not to reinterpretation, but to misinterpretation. To be sure, “in the course of time, as is often the case with language, the meaning of words or terms is changed”; but, even so, the meaning of the Constitution does not change pari passu. (footnote 24) the “meaning [of constitutional provisions] is changeless; . . . only their application . . . Is extensible.” (footnote 25) “What [the Constitution] meant one adopted it still means for the purpose of interpretation,” (footnote 26) notwithstanding swings in public opinion at home and abroad, (footnote 27) changes in “the ebb and flow of economic events,” (footnote 28) 193) or shifts in public policy. (footnote 29) Therefore:
[W]hile [the Constitution] remains unaltered, it must be construed now as it was understood at the time of its adoption. It is not only the same in words, but the same in meaning, and delegates the same powers to the government, and reserves and secures the same rights and privileges to the citizen; as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. And any other rule of construction would abrogate the traditional character of [the Supreme Court], and make it the mere reflex of the popular opinion or passion of the day. (footnote 30)
For, “[i]f . . . We are at liberty to give old words new meanings . . . there is no power which may not . . . be conferred upon the general government“. (footnote 31)
1.) Lake County Commissioners v. Rollins, 130 U.S. 662, 670 (1889).
2.) Coleman v. Alabama, 390 U.S. 1, 23 (1970) (Berger, J., dissenting). See, e.g., Ex parte Wells, 50 U.S. (18 How.) 307, 314 (1856): “It not infrequently happens in discussions upon the Constitution, that an involuntary change is made in the words of it, or in their order, from which, as they are used, there may be a logical conclusion, that would be different from what the Constitution is in fact. And even though the change may appear to be equivalent, it will be found upon reflection not to convey the full meaning of the words used in the Constitution.”
3.) Gibbons v. Ogden, 20 U.S. (9 Wheat.) 1, 188 (1824); McPherson v. Blacker, 146 U.S. 1, 27 (1892); South Carolina v. United States, 190 9U.S. 437, 449 (1905).
4.) The Pocket Veto Case, 279 U.S. 655, 679 (1929).
5.) Wake County Commissioners v. Rollins, 130 U.S. 662, 670 (1889).
6.) Wright v. United States, 302 U.S. 583, 588 (1938).
7.) United States v. Sprague, 280 U.S. 716, 731 (1931); Green v. United States, 350 6U.S. 165, 210 (1958) (Black, J., dissenting).
8.) Tennessee v. Whitworth, 117 U.S. 129, 147 (1886); The Pocket Veto Case, 279 U.S. 655, 679 (1929).
9.) United States v. South-Eastern Underwriters Association, 322 U.S. 533, 539 (1944).
10.) Briscoe v. Bank of Kentucky, 36 U.S. (11 Pet.) 257, 328c (1837) (Baldwin, J., concurring).
11.) The Pocket Veto Case, 279 U.S. 655, 679 (1929).
12.) Eisner v. Macomber, 250 U.S. 189, 219–20 (1920) (Holmes, J., dissenting). Accord, Ohio ex rel. Popovici v. Angler, 280 U.S. 379, 383–84 (1930).
13.) See 1 J. Story, Commentaries on the Constitution of the United States (5th ed. 1891), § 451, at 345.
14.) Bronson v. Kinsey, 40 2U. S. (1 How.) 311, 318 (1843).
15.) This would hardly require mention, except that with huge influxes of foreigners who neither speak nor apparently desire to learn English, a political issue has arisen over whether an official national language exists. How anyone could deny that the language in which “the supreme Law of the Land” is written is not there by the official national language escapes understanding.
16.) Connelly v. Gen. Construction Co., 269 U.S. 385, 391 (1926).
17.) South Carolina v. United States, 199 U.S. 437, 449 (1905).
18.) Pollock v. Farmers Loan & Trust Co., 157 U.S. 429, 558 (1895).
19.) Ogden v. Sanders, 20 U.S. (12 Wheat.) 213, 332 (1827) (Marshall, C. J., dissenting).
20.) Ohio ex rel. Popovici v. Angler, 280 U.S. 379, 383 (1930); Eisner v. Macomber, 252 U.S. 189, 219-20 (1920) ( Holmes, J., dissenting).
21.) United States v. South-Eastern Underwriters Association, 322 U.S. 533, 539 (1944). Accord, Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 190 (1824).
22.) Scott v. Sandford, 60 U.S. (19 How.) 393, 418 (1857).
23.) Eisner v. Macomber, 252 U.S. 189, 219–20 (1920) (Holmes, J., dissenting). for an example of proper constitutional analysis on the score, see Knowlton v. Moore, 170 U.S. 41, 96-106 (1900).
24.) See N. Chipman, Principles of Government: a Treatise on Free Institutions (1833), at 254.
25.) Home Building & Loan Association v. Blaisdell, 290 U. S. 398, 451 (1934) (Sutherland, J., dissenting).
26.) Smiley v. Holm, 280 U.S. 353, 365 (1932). Accord, South Carolina v. United States, 190 U.S. 437, 448 –49 (1905).
27.) Scott v. Sandford, 60 U.S. (19 How.) 383, 426 (1857).
28.) West Coast Hotel Co. v. Parrish, 300 U.S. 379, forms into (1937) (Sutherland, J., dissenting).
29.) Patton v. United States, 281 U.S. 276, 306 (1930). For “’[p]olicy and humanity’ dangerous guides in the discussion of legal proposition. He follows them far is apt to bring back the means of error and delusion.” Edwards v. Kearzy, 96 U.S. 595, 604 (1878).
30.) Scott v. Sandford, 60 U.S. (19 How.) 383, 426 (1857).
31.) Passenger Cases, 48 U.S. (7 How.) 283, 478 (1849).
1.) Scott v. Sandford, 60 U.S. (19 How.) 383, 426 (1857).
2.) Passenger Cases, 48 U.S. (7 How.) 283, 478 (1849).
3.) Proper v. Clark, 330 U.S 472, 484 (1949).
4.) W. Blackstone, Commentaries on the Laws of England (Amer. ed., 4 Vols. & App., 1771 – 1773).
5.) Schick v. United States, 195 U.S. 65, 69 (1904). See, e.g., The Federalist No. 84 notes [1 and 2].
6.) 1 Commentaries at 71, 212.
7.) See, e.g., 2 W. Crosskey, Politics and the Constitution in the History of the United States (1953), ch. XXVII.