Founding Fathers and Original Intent

Discussion in 'West Mall' started by huisache, Aug 5, 2010.

  1. huisache

    huisache 2,500+ Posts

    So often we see on this board discussions relating to constitutional issues that I thought it would be useful to post a few thoughts I have had after doing a bit of comparison of three documents.

    I have been reading The Federalist, The Anti-Federalist Papers and the notes on the constitutional convention.

    A lot of the questions that get raised on this board about executive usurpation, judicial activism, states' rights and the like were addressed at the time the Constitution was drafted and under consideration.

    The anti federalists made many of the same points being made now by our more conservative brethren----this constitution is going to allow the growth of a hugely powerful central government and the brakes attached are not going to be effective. They attributed this likelihood to the very vagueness and ambiguity of the language used.

    The most interesting argument I have run across so far has been that the advocates of the constitution intentionally wrote it in such a vague fashion that it would be readily adaptable to any circumstance that should arise in the future and that the federal courts would pounce on any opportunity to enlarge federal power.

    In effect, they are saying that the Original Intent of the Founders was to have a powerful centralized state which would be free to interpret the constitution in any way it chose to expand its power. The commerce clause with its wonderfully vague and elastic language was specifically discussed.

    I thought I would toss this out for consideration as we watch a federal court in San Fran pitch out a couple hundred years of practice and a few thousand years of moral disapprobation and the government mandates our purchase of insurance.
     
  2. kgp

    kgp 1,000+ Posts

    I don't think there was any one school of thought on what the drafters wanted the central government to become, but I expect that there was a strong residual distaste for centralized power after all the shenanigans Monarchs and Parliament had pulled over the previous century and a half. The disrespect and disregard of Parliament for the several colonial assemblies was, IMO the true seed of the revolution. The inclusion of Amendments IX and X in particular demonstrate a strong current of mistrust for centralized rule. I think the original unamended Constitution is a testament to the overwhelming esteem in which so many delegates held General Washington. Men who had been shortly before willing to commit treason to secure for their homeland the autonomy and style of government they desired were able to strike historic compromises and to subjugate their newly free states to a new master. Without him to lend his aura to the convention and the promise of his presence as the new Kin-- er president, we would still have been under the Articles when England reconquered and re-annexed us in the war of 1812. As you say, though, even then there were statists about.
     
  3. huisache

    huisache 2,500+ Posts

    Keep in mind that the ninth and tenth were added as amendments in order to answer the concerns of the opposition. They were not in the original document.

    And they are very vague and not often invoked.
     
  4. kgp

    kgp 1,000+ Posts

    The tenth amendment is vague only insofar as it is broad. It pretty much, when taken as written, puts a box around the early federal government's scope. The ninth amendment is, agreed, less specific but addresses an important philosophical distinction between a government that allows certain behaviors and one which denies certain ones, between living by the leave of the government and granting a government a few of your intrinsic elements of sovereignty. Of course the BOR by definition as amendments was not part of the original document, but it was framed in the same period and negotiated by the same basic players as a sort of clarification of what had been put in force just three years before it was. I think it not unreasonable to include it in a study of how the members of the Philadelphia Convention felt.
     
  5. bierce

    bierce 1,000+ Posts

    The original intent question is usually misdirected.

    It is the intent of the ratifiers, not the authors, that should control questions about the meaning of the constitution, since the real concern is what the people thought they were agreeing to, not what they were being sold.

    That makes for a much more difficult question to answer since you can't look to a single source to uncover the mental gymnastics of umpteen million people being represented by x hundred individuals through state legislatures.

    So, you trot out the usual suspects--the Federalist papers, Jefferson's letters, newspaper editorials circa 1788, Senate debates, etc. Enjoy wading through it all.

    While you're doing that, don't forget that the Constitutional Convention was convened not in response to throwing off British tyranny but in response to the myriad of problems under the Articles of Confederation. To that extent, yes, it was designed precisely to create a much stronger central government to oversee and regulate commerce.
     
  6. pasotex

    pasotex 2,500+ Posts

    This is an interesting topic and one worthy of Quack not this board.

    I have studied this a bit both in political science courses undergrad, in law school, and a few times in cases (it does not come up all that much in my practice). I do not think there is any question that the intent was to create a stronger central government. The question is how strong. You also have competing ideals from the two main authors and the leading states. I believe it was left intentionally vague as a political decision in order to appeal to both sides.

    This is one reason why original intent can be such a crapshoot. It is unusual when you cannot find something supporting both sides of an original intent argument especially on a provision that is vague.
     
  7. Coelacanth

    Coelacanth Guest

    I would think that the text itself comes first; then, if the text is unclear, we look for a consensus of intent; and then, if we find no consensus of intent, we look for the intent of some author (or ratifier), so long as he's not contradicted by other authors (or ratifiers).

    And where there is no clarity, after all that, then we have to make the best of it.

    I tend to think that in many cases we're too ready to dismiss the text itself.

    But then I'm no lawyer. I drive buses for a living.
     
  8. bierce

    bierce 1,000+ Posts

    I don't necessarily disagree with any of that with the exception of the assertion that we're too ready to ignore the text.

    The discussion we're having about Article V in the other thread is an example. How a 143 word sentence with eleven commas and two semicolons and discussing proposing amendments, adopting amendments, and prohibiting certain types of amendments can be interpreted simply by reading the text is beyond me. I really don't think that two people just looking at the thing without any prior understanding of it would agree on its meaning in all respects.

    Some parts of the Constitution seem pretty transparent, even today. Some parts don't. Meanwhile, the meaning of words shift over the decades, and some of the provisions are deliberately cast in language that suggests mutability according the changing social norms. What is "unreasonable" is determined according to an objective standard, but such standard is measured by what the ordinary person thinks under the circumstances, so what is reasonable today may not have been 50 years ago.
     

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