The Appeal of “Original Intent” Interpretation
Right now there are two dominant theories of constitutional interpretation: originalism and living constitution. Originalism is the view that the meaning of the Constitution is limited to the meaning of the words in the text, and that those meanings are rooted in the original public understanding of the words in question. Living constitution is a view more difficult to pin down, but the main idea is that the words of the Constitution can change in their meaning over time to adapt to changing circumstances.
Both of these views sideline “original intent” as an interpretive framework. However, Donald Drakeman argues in his recent book The Hollow Core of Constitutional Theory: Why We Need the Framers that discerning the intent of lawmakers has been the dominant mode of legal interpretation since the ancient Romans.
Without getting into the merits of his position in depth, I’d like to note one feature of “original intent” interpretation that is very attractive. That feature is the considerable freedom and leeway provided for future legislative bodies and citizens by this mode of interpretation. Let me explain.
In an interview with Jeffrey Sikkenga of the Ashbrook Center, Drakeman responded to a typical objection leveled against “original intent” jurisprudence. This objection is that original intent is impossible to discern because the framers of a law often disagree on their intentions for the law. For example, anyone familiar with the American framing of the Constitution will appreciate how far apart the Federalists and Anti-Federalists were on issues like length of terms, size of the House, and so on. Even if finding the “original intent” is good in theory, it is impossible to implement in practice. So the objection goes.
Drakeman’s response is that “original intent” is not about finding the intent of individual legislators but about finding the intent of a legislative or ratifying body. The group, not individuals. This means that the discerned intent will be the broadest area of agreement (you could say, lowest common denominator). For example, there were and have been many debates about the meaning of the Establishment Clause of the First Amendment. Some wanted it to limit all kinds of religion-state partnerships while others wanted basically no partnership between religion and state. However, what everyone agreed on, what constituted the broadest area of agreement, was that there would be no established national religion. While certain individuals may have wanted more or less when it comes to the Establishment Clause, the body intended for there to be no established religion. Therefore, that is the “original intent” of the Establishment Clause.
And this is the feature of “original intent” that has considerable appeal, especially when thinking about the role of law in human life and society. If legal and constitutional interpretation will favor the broadest area of agreement, this means in general that the meaning of the law in question will be pretty limited, providing considerable leeway for future legislative bodies and citizens to operate within the broad confines laid out by the original framers. In my view, this is appealing because laws play an important part of human society, but they are not the most important thing. If laws are like guardrails, it’s the living within the guardrails that is the most important thing, not the guardrails themselves. If parents give their children an 11:00 curfew, the curfew is very important for creating predictability and ensuring some level of safety. But the curfew is not the most important thing for the kids’ lives. No, it’s making and building friendships, creating art, writing poetry, enjoying nature — these are the things that make a life, the things that are done before the curfew calls them home.
Because human life’s importance is felt within the confines of the laws set down for our societies, it only makes sense that those laws would be limited in how much they interfere with that life. Original intent jurisprudence seems to provide very well for that way of thinking about law.
