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“Original Intent”

Blackstone's phrase “intentions at the time when the law was made” has come to be truncated into the term “original intent”

Constitutional Militia
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Original Intent of the Constitution
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Last Updated on August 20, 2022 by Constitutional Militia

“Original Intent”

“Original intent” is the fundamental rule of construction of the Constitution. In the parlance of modern constitutional exegesis, Blackstone’s phrase “intentions at the time when the law was made” has come to be truncated into the term “original intent”.[1] At the time the Constitution was written the doctrine of “original Intent” was already hundreds of years old.[2] When “WE THE PEOPLE ***ordain[ed] and establish[ed] this Constitution”[3] there was no other rule of construction known to us but “original intent”. With the passage of time came the legal sophistry of the “living” Constitution that has no fixed rule of construction, but instead is a “supreme Law” who’s meanings change in the manner of chameleon changing it’s color.

Although this website does focus on leading decisions of the Supreme Court, it also keeps foremost in mind the wisdom of Henry de Bracton, “that ignorant, confused, or power-seeking judges often misapply or subvert the laws”.[4] This observation is peculiarly pertinent today, when even Justices of he Supreme Court charge that, as to most of the Court’s decisions,

“the governing standard is * * * what might be called the unfettered wisdom of the majority of th[e] Court, revealed to an obedient people on a case-by-case basis. This is not only not the government of laws that the Constitution established; it is not a government of laws at all.”[5]

In light of this, the Constitutional Militia Organization will insist that “the supreme Law of the Land”[6] is the Constitution as written, not erroneous doctrines judges may attribute to it in their opinions.

“Original Intent”: Fundamental rule of constitutional construction.

The idea that decisions of courts are laws at all, in the sense constitutional provisions and statutes are, came into vogue only after the publication of Grey’s The Nature and Sources of Law, in 1909.[7] During the late 1700s quite a different understanding reigned. For example, Blackstone’s Commentaries[8] was the most satisfactory exposition of the law available to Americans. “At the time of the adoption of the Federal Constitution [the Commentaries] had been published about twenty years, and it has been said that more copies of the work had been sold in this country than in England, so that undoubtedly the framers of the Constitution were familiar with it”.[9] Speaking of the common law, Blackstone explained that each judge is “sworn to determine, not according to his own private judgement, but according to the known laws and customs of the land; not delegated to pronounce new law, but to maintain and expound the old”. Even in overruling precedents “where former determination is most evidently contrary to reason”, “the subsequent judges do not pretend to make new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law”. “So that the law, and the opinion of a judge are not always convertible in terms, or one in the same thing; since it sometimes may happen that the judge may mistake the law.”[10] And, self-evidently, a mistake in stating the law cannot become the law, unless the law empowers error to supersede truth.

That the Founding Fathers, as well as all other legally literate Americans of their era, applied to their new supreme law this understanding of the difference between law and a mere judge’s opinion is evident from the very structure of the Constitution, which divides the national government into three coördinate, coequal Branches—one exercising “[a]ll legislative Powers herein granted”,[11] one exercising “[t]he executive Power”;[12] and one exercising “[t]he judicial Power”.[13] The Founders differentiated in categorical terms between the power to make laws (the “legislative Power[ ]), the power to “take Care that the Laws be faithfully executed”[14] (the “executive Power”), and the power to decide adventitious “Cases” and “Controversies”[15] involving the laws (the “judicial Power”). Moreover, the Constitution explicitly mandates that “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land”.[16] No mention is made of judgements, decisions, opinions, and least of all interpretations of the Supreme Court (or of any court) as being part of this “supreme Law”—or being any kind of law at all—let alone as controlling the construction of the Constitution as everyone else in the world, including the other two coördinate, coequal Branches of the national government. Indeed, as James Madison pointed out in The Federalist No. 49, “[t]he several departments [of the national] government] being perfectly coordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers”.

In addition, even with respect to their power to convince by dint of reason (as opposed to the power to control legally), judicial interpretations of the  Constitution would not be metaphorically “law” unless they are manifestly correct. As the Supreme Court itself said in Marbury v. Madison,[17]

in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution shall have that rank.

Thus, the particular phraseology of the constitution * * * that a law repugnant to the to the constitution is void; and that courts, as well as other departments, are bound by that instrument.[18]

Out of stark necessity, as well as familiarity, “original intent” was the interpretive method employed by the Framers who drafted the Constitution, the Founding Fathers who ratified it in the State Conventions, the first public officials in the General Government and the governments of the several States who applied it, and WE THE PEOPLE as a whole whose agents all of the foregoing were. For what rule of construction could Americans at that time have employed to draft, interpret, and apply their utterly new Constitution other than to ask what those documents meant to WE THE PEOPLE at that time, and to answer that question by reading the documents’ words in their linguistic, legal, political, and historical contexts current at that time? After all, no legal sophists had yet popularized the fantasy that the Constitution is a supposedly “living” linguistic entity capable of protean meanings that somehow spontaneously “evolve” over time, without any formal amendments, in response to different political, economic, social, and cultural circumstances, tastes, fashions, or fads—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” could conceivably have taken place.[1]

Therefore, inasmuch as Americans of the pre-constitutional era were thoroughly familiar with the doctrine of “original intent”; inasmuch as “original intent” was then the prevailing rule for statutory construction; inasmuch as everyone at that time would have presumed (and correctly so) that “original intent” could have supplied a viable construction of every provision in the Constitution; inasmuch as some unique rule of statutory construction had to be adopted if “the supreme Law of the Land” was to be rationally enforced; and inasmuch as no alternative rule of construction enjoyed any currency among WE THE PEOPLE even as a legal theory—then “original intent” must have been adopted as the exclusive means of interpreting the Constitution at that time. And not simply after it had been ratified. For, had not the Framers employed “original intent” when they composed the Constitution, and had not the Founding Fathers utilized “original intent” when they ratified it, and had not WE THE PEOPLE themselves conclusively presumed with legal certitude that the Framers and the Founders were doing so, no one could have known with any semblance of surety what the Constitution meant at any point during the entire process of its enactment. So, too, for the Bill of Rights.[2]

Today, as well, “original intent” continues as the only legitimate—indeed, the only rational—method of construing the Constitution. For, “original intent” being the rule in reliance upon which the Constitution was originally drafted and ratified, it is as much an actual, albeit only implied, provision of the Constitution as any other—indeed, perhaps more important (and certainly more often consulted) than any other, because the proper construction of every provision of the Constitution depends upon it.[3]

Footnotes:

1.) The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 46 (bold face emphasis supplied).

2.) Id.

3.) id.

For the original Constitution and the Bill of Rights to have had ascertainable meanings in 1788 and 1791, a set of equally ascertainable principles of interpretation or construction of their language must then have existed. After all, constitutional questions “must be resolved not by past uncertainties, assumptions, or arguments, but by the application of the controlling principles of constitutional interpretation”.[1] Moreover, those principles themselves must have been fixed in substance, and their proper applications well understood, otherwise their very verbal ambiguity and political plasticity would have afforded a surreptitious means for serially amending the Constitution. “Surreptitious”, because the original Constitution contained an explicit and complex procedure for Amendments.[2] And if effective amendment simply by alleged “interpretation” or “construction” were allowable, then this provision would have been utterly superfluous, even duplicitous, from the very outset—in derogation of the opposite conclusion, obvious from the structure of the instrument itself, that no “clause in the constitution is intended to be without effect”.[3] In derogation, too, of the very purpose of the provision for Amendments, which is to compel extremely careful deliberation by WE THE PEOPLE as a whole on any proposed change in their Constitution, so as to preserve self-conscious and fully informed popular self-government. Whereas, underhanded ersatz amendments jury- rigged by specious “interpretations” or “constructions” of the Constitution aim at the subversion, if not the entire overthrow, of popular self-government—because the concocted “interpretations” or “constructions” derive, not from WE THE PEOPLE themselves, but instead from unelected judges and their law clerks, or nameless and faceless bureaucrats in “alphabet agencies” (the quintessence of political élitism); or from legislators almost always beholden to avaricious special-interest groups (the quintessence of political corruption). All of these constitute “factions”—namely, “a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community”.[4] Importantly, even a majority of the community may constitute a faction, inimical to the Constitution, if its members’ aim is other than “the common defence” and “the general Welfare”.[5] Therefore, the correct construction of the Constitution cannot be held hostage to what passes for modern “democracy”: namely, the raw will of some majority of the moment, unrestrained by concerns for the community’s well-being in the long run—which in its most grotesque manifestations the ancient Greeks disparaged as “ochlocracy”, the rule of the mob. For example, Aristotle distinguished between, on the one hand, “a state”, which was his name for a government in which “the citizens at large govern for the public good”; and, on the other hand, “democracy”, which was his name for “the corruption[ ] attending” the type of government in which “those who have [the supreme power] are worth little or nothing” and rule without “hav[ing] a common good in view”.[6] So, today as well, mere numbers can have nothing to do with the matter: The meaning of the Constitution’s provisions “may not be submitted to vote; they depend on the outcome of no elections”.[7]

Footnotes:

1.) Wright v. United States, 302 U.S. 583, 597-598 (1938).

2.) U.S. Const. art. V.

3.) Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803).

4.) The Federalist No. 10 (James Madison).

5.) See U.S. Const. preamble (emphasis supplied).

6.) Politics, Book III, Chapters VII and VIII, in A TREATISE ON GOVERNMENT OR, THE POLITICS OF ARISTOTLE, William Ellis, Translator (London, England: J.M. Dent & Sons Ltd., 1912), at 79.

7.) West Virginia State Board of Education v. Barnette, 319 U.S. 624, 638 (1943).

No rule of law requires, or could rationally require, that “we must consecrate the mere blunders of those who went before us, and stumble upon every time we come to the place where they have stumbled”.[1] For, after all, whether a decision is consistent or inconsistent with the Constitution depends upon whether it satisfies certain legal principles embodied, not in earlier judicial precedents, but only in the organic law itself. These principles are the true, permanent and controlling standards for judicial precedents, and thus necessarily superior to them all. Fully applicable, therefore, is the observation of Lord Mansfield that law “would be a strange science indeed if it were decided upon precedents only. Precedents serve to illustrate principles, and to give them a fixed certainty.”[2] Judicial decisions, that is, can never be a source of constitutional law, from which anyone can unfalteringly induce or deduce even a correct, let alone binding, interpretation of the Constitution. For judicial decisions are only the result of some court’s having applied certain preëxisting legal principles rightly or wrongly, in the adjudication of particular cases or controversies. Therefore, although they may be highly illustrative, judicial precedents constitute not the law itself but at most only selected evidence of what the Constitution may—but does not necessarily—mean.[3]

Footnotes:

1.) McDowell v. Oyer, 21 Pa. 417, 423 (1853). Accord, Ex parte Bollman, 8 U.S. (4 Cranch) 75, 104 (1807) (Johnson, J., dissenting).

2,) Jones v. Randall, 98 Eng. Rep. 954, 955 (K.B. 1774)

3.) See Ex parte Milligan, 71 U.S. (4 Wall.) 2, 119 (1866). Also see generally Pieces of Eight: The Monetary Powers and Disabilities of the United States Constitution, (Chicago, Illinois R R Donnelly & Sons, Inc., GoldMoney Foundation Special Edition [2011] of the Second Revised Edition , 2002) by Dr. Edwin Vieira, Jr., Volume I, CONSIDERATION 3, The Misconstrued Role of the Supreme Court as the Ultimate Interpreter of the Constitution.

Under the new Constitution in 1788, no judicial, legislative, or executive precedents existed upon which they could draw. No passage of time had then given credence to the legal sophistry that the Constitution, as supposedly a “living” document, had somehow evolved so as to take on a sense other than the one it embodied at the moment of ratification.[19]

Today, “original intent” continues as the only legitimate—indeed, the only rational—method of construing the Constitution. For, “original intent” being the rule in reliance upon which the Constitution was originally drafted and ratified, it is as much an actual, albeit only implied, provision of the Constitution as any other—indeed, perhaps more important (and certainly more often consulted) than any other, because the proper construction of every provision of the Constitution depends upon it.[20]

1.) Sir William Blackstone, Commentaries on the Laws of England (Philadelphia, Pennsylvania: Robert Bell, American Edition, 4 Volumes & Appendix, 1771-1773), Volume 1, at 59.

2.) See generally, e.g., Raoul Berger, “Original Intention in Historical Perspective”, 54 George Washington Law Review 296 (1986).

3.) U.S. Constitution, preamble.

4.) See 2 Bracton on the Laws and Customs of England (G. Woodbine ed. 1968), at 19. Until the advent of Blackstone’s Commentaries some five centuries later, Bracton’s treatise on the laws of England was the most satisfactory treatment available. See 2 W. Holdsworth, A History of English Law (1936), at 234-89; T. Plucknett, A Concise History of the Common Law (1929), at 258-66.

5.) Morrison v. Olson, 487 U.S. 654, 712 (1988) (Scalia, J., dissenting).

6.) U.S. Const. art VI, cl. 2.

7.) See J. Grey, The Nature and Sources of Law (1909), § § 528-50, discussed in 2 W. Crosskey, Politics and the Constitution in the History of the United States (1953), at 904-06.

8.) W. Blackstone, Commentaries on the Laws of England (Amer. ed., 4 vols. & App., 1771-1773).

9.) Schick v. United States, 195 U.S. 65, 69 (1904). See, e.g., The Federalist No. 84 notes [1 and 2].

10.) Commentaries at 69-70, 71 (emphasis in the original).

11.) U.S. Const. art. I, § 1.

12.) U.S. Const. art. II, § 1.

13.) U.S. Const. art. III, § 1.

14.) U.S. Const. art. II, § 3.

15.) U.S. Const. art. III, § 2, cl. 1.

16.) U.S. Const. art. VI, § 2, cl. 1.

17.) 5 U.S. 1 Cranch) 137 (1803).

18.) Id., at 16 (emphasis in the original).

19.) Pieces of Eight: The Monetary Powers and Disabilities of the United States Constitution, (Chicago, Illinois R R Donnelly & Sons, Inc., GoldMoney Foundation Special Edition [2011] of the Second Revised Edition , 2002) by Dr. Edwin Vieira, Jr., Volume I, page 29.

20.) The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 46.

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