The Fallacies of Original Intent

December 16, 2020

Amy Coney Barret, the most recent appointee to the Supreme Court, is a vigorous advocate of prioritizing the original intent of the writers of the Constitution to reach judgments on contemporary legislation. Original Intent, an orientation popularized by the late Judge Antonin Scalia, has had meager public debate over the basic question of whether it is a valid judicial perspective. Even casual study reveals that Original Intent is replete with fallacious assumptions whose long-term impact on the federal judiciary bodes ill for the future of the United States.

A fundamental flaw of Original Intent is that it assumes that the founding fathers (all of them male) shared the same basic intentions. Also implied is that the founders thought their specific situational solutions were timeless. This ignores the reality that the Constitution was a rethinking of the failed Articles of Confederation (1781-1788) that united the original thirteen States. The Constitution itself dissatisfied a majority of its signers, including James Madison, its major architect. By 1791, there had been ten amendments, which took the form of the now-hallowed Bill of Rights. Subsequently, there have been seventeen more amendments, a number of them reversing positions established in the original version.

Although the founders were a remarkable group who forged a revolutionary document, they did not believe they had crafted unalterable Holy Script. Thomas Jefferson opined that there should be a revolution every twenty years. He wasn’t advocating continuous insurrections but the need to constantly reframe laws to reflect inevitable social and technological changes. He drew on his knowledge of Classical Greece to describe the revolutionaries as Argonauts venturing into unexplored lands.

The new-born United States of 1783 was a frail marginal state that had only gained independence with vigorous military intervention by France. Great Britain remained intent on recovering its rebellious colonies. Spain controlled Florida, France claimed ownership of most of the land beyond the Appalachians, and Native Americans were still a major military threat all along the frontier. Given the need to remain unified against such hostile forces, the founders had to make numerous intellectual compromises when drafting the new Constitution.

A major problem was establishing an equitable balance of power among the member states. Smaller states were wary of being overruled by larger states. Rural areas feared domination by cities. Southern states insisted on the need to retain slavery even though anti-slavery sentiment was already growing in the other states. Working out these contradictions led to many of the fault lines in the Constitution that continue to plague the nation.

The Electoral College, for example, was designed to protect less populated states by giving them more electoral votes than their numbers warranted. An unexpected consequence was such states became more influential than the states where most Americans resided. This occurred as early as 1801. The conservative John Adams would have won a second term if the Southern states had not unanimously voted against him on the basis of his well-known hostility to the institution of slavery. Their electoral power was due to the Constitution allowing states to count three-fifths of their slaves as if they were voters. Adams’ defeat prompted him to write that the nation was “cursed by its constitution.”

The founders believed government should not be run by representatives of formal political parties but by leading citizens who graciously served in office for a limited time. The founders also believed that only men who owned property were sophisticated enough to rule themselves in a responsible manner. Women, Native Americans, slaves, and males who did not own property were excluded from voting.

Judges who depend on Original Intent for guidance often favor the intent of those founders with whom they happen to agree. They also tend to look at the wording of disputed legislation in a similar subjective manner. Much legislation is hastily drafted with deliberate or accidental incongruities. Close or literal reading of a phrase can simply be a means of asserting a judge’s pre-existing views.

The thinking of the founders regarding the nature and purpose of democratic government remain pertinent, but not their specific solutions regarding the range, instrumentalities and mechanics of effective government. The founders could not imagine there would be American cities with millions of inhabitants, a fatally warming planet, and a global economy whose technological and social dynamic are constantly moving into uncharted waters.

The United States currently faces unprecedented social and economic challenges. It needs to be looking forward with new insights rather than backward to obsolete ideas rooted in what was literally the Horse and Buggy era. Idealizing the founders and their era is a self-serving reactionary response posing as cautious conservatism. Candidates for any federal judgeship who are enamored with the Original Intent view need to be queried about its obvious faults. If they refuse, indulge in evasive language, or can’t respond rationally, their candidacies need to be rejected.


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