1Jul2008
Filed under: Law, Politics
Author: Mike
The Tribune ran an interesting piece yesterday by Jack Rakove. Rackove pointed out the rather unknown and interesting fact that both Scalia and Stevens referred to the intent of the founders when arguing their different positions on the DC gun ban.
Original intent arguments have always driven me a little insane. If there were but one founding father, the notion of intent would be problematic to say the least. What about positions taken for political reasons? And can his intent really be taken out of the historical moment and projected onto the future? As it happens we have dozens of so-called “Founding Fathers” each of whom had differing and often conflicting “intents” as to the purpose of the constitution. I understand that it is probably prudent to consider intent when interpreting law, and yet I find it a little absurd. It seems more about justifying an interpretation politically than getting an interpretation right?
I need my lawyer friends to chime in here.
Dane
July 1st, 2008 at 9:38 am
Mike, interesting topic.
Original intent means a lot of things to a lot of people. As you correctly address, there is no original intent of the founders, as numerous men made numerous decisions across that fateful summer. They hardly developed a clear, unifying theme that could be called their original intent. When someone cites a political position or constitutional interpretation as original intent, they are most likely refering to an “original majority opinion at one moment in time.” I am entertained when someone cites an opinion as original intent because I imagine all sorts of other fun “original intent” arguments (many of which were actually voted on). For example, my man Gouverneur Morris proposed that one legislative house represent the land-owning interests of the country. His original intent was to give the wealthy serious protection from the thieving congressmen of the middle-class and poor. Another convention badass, George Mason, didn’t sign the final document at all. His original intent was to bury the tyrannical federalist form of government (unless a bill of rights was added, which it eventually was). So, the original intent of the members was quite diverse.
There are many alternative ways of looking to the past discussions of the founders for future guidance. I think textualism and contextualism provide stronger methods for examination than original intent. John Yoo provides an excellent breakdown of original intent and contextualism regarding war powers in his book “The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11.” Whatever you may think of him, he positively nails down his legal arguments.
Rob_N
July 1st, 2008 at 9:40 am
Scalia harkened back to a century *before* the Founding Fathers and used the British persecution of Protestants as a rationale for inventing what he calls an “implied right”.
As interpreter of the Constitution it is his responsibility to do such things; but it is odd and not the least bit hypocritical that conservatives now read an implied right (to self-defense) in one part of the Constitution but not other implied rights (such as medical privacy) when arguing against something like abortion.
On District of Columbia v. Heller - A Chicago Blog
July 7th, 2008 at 12:29 pm
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