Sunday, June 22, 2008

Original Intent

Many judges, including perhaps a majority of the US Supreme Court, subscribe to the belief that the US Constitution should be interpreted based the drafters' intent. At first glance, the idea makes perfect sense. After all, the Common Law generally provides that a contract or law should ordinarily be interpreted as the authors' intended. When it comes to the Constitution, however, seeking original intent is completely irrational.

The Constitution is 230 years old. No one alive today voted for it. Even at the time the Constitution was ratified, only small minority of those then alive had anything to do with the decision. Women did not get the vote until over 100 years later and blacks in the U.S. were nearly all held in slavery. Moreover, no matter how good their intentions, the authors of the Constitution had no right to impose their will on their contemporaries, let alone everyone who lives in the United States (as it has now expanded) for all time.

Thankfully, human society has advanced substantially in the past 230 years. Although the authors of the Constitution may have been enlightened for their time, their views on interracial marriage, slavery, crime and punishment and numerous other matters are barbarian by today's standards. The fact that these people thought we have a right to bear arms, for example, should not control our lives. Their judgment about right and wrong is questionable at best, and perhaps more importantly they knew nothing about the weapons or society of today.

Ironically, looking for original intent ignores the true genius of the Constitution. The drafters never intended to legislate 23o years in advance. Rather than defining the rights of the citizens in clear terms, the drafters used phrases like "Due Process of Law" and "Equal Protection." These phrases were intended to be vague, so that each generation could interpret them differently and thus govern themselves. Asking what the drafters meant by "Equal Protection" is not only asking for trouble, it is actually ignoring the drafters' intent.

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