Thursday, July 07, 2005

Original Intent

The United States Constitution is an amazing document. It is small and concise, and is a blueprint for establishing a Republic where citizens are free to act in any way they choose, as long as they do not intentionally harm someone else. It expressly limits government power and responsibility to carefully defined areas. Upon assuming office, every elected officeholder in the United States must take an oath to “…preserve, protect and defend the Constitution of the United States of America.” The U.S. Constitution is discussed at length in Civics classes taught in every high school in America. And yet there is no national consensus as to what the U.S. Constitution means, and there is no national consensus on how the Supreme Court should make its decisions relevant to the Constitution. One only has to look at the large number of decisions which are split 6-3 or 5-4 to see this is true. Why are there such sharp disagreements about what the U.S. Constitution means?

I think the reason for this profound discord is that the Supreme Court has decided the “Original Intent” of the framers of the Constitution is no longer relevant. Most Justices cite prior cases as their justification for rulings on new ones. Other Justices ignore Original Intent and past decisions entirely, saying the Constitution is a “living document”; one which must be constantly reinterpreted in accordance with the social norms of the day. It’s rare, indeed, to see a ruling which addresses the “Original Intent” of the framers as the basis for the decision. An examination of present and past decisions shows this is so.

For example, in Kelo v City of New London (2005), the Supreme Court ruled the city of New London, Connecticut was allowed to forcibly take people’s homes for redevelopment. The 5 judge majority cited previous Court rulings as the basis for this decision. A discussion of the Original Intent of the “Takings Clause” in the Constitution was mentioned only in one of the dissenting opinions. In Wickard v Filburn (1942), the Supreme Court ruled Congress has the power to decide how much wheat a farmer may grow each year. Again, the Court’s ruling cited only previous Court decisions as the basis for this ruling, and refused to entertain any discussion of Original Intent.

This wasn’t always the case. If one looks at earlier decisions, especially those made prior to 1930, Original Intent was more often cited. For example, in two cases involving bankruptcies, Sturges v Crowinshield (1819) and Ogden v Sanders (1827), the Supreme Court expressly discussed the relevant Constitutional articles and their Original Intent in the ruling. And in the “Separate but Equal” case of Plessy v Ferguson (1896), the Court also explicitly refers to various Constitutional clauses and their Original Intent in justifying its decision.

People of good will may agree or disagree on what the various articles of the Constitution mean. But at least they have a common starting point, a document which was agreed upon and ratified by all the founding States. And if they find the Constitution is lacking in a certain area, for example in ensuring people of all races are to be treated equally under the law, an Amendment to the Constitution can and should be passed to rectify the situation.

But when decisions are based on previous decisions, and those previous decisions are based on still earlier decisions, it is as if a photocopy of a photocopy of a photocopy is made; the original information can become confused and eventually lost.

In the coming debate over at least one, and probably two, new Supreme Court Justices, the real debate should not be over what the previous decisions of the nominees have been, but rather on what basis Supreme Court decisions should be reached. While this may be painful over the short-term, in the long run it will help to create a new national consensus; one which can be used to help address the thorny social issues of today and tomorrow.

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