Whose Original Intent?

The political right talks of constitutional originalism, often in claiming the United States is a republic, not a democracy. It’s obvious bullshit, of course. No one who knows history can take seriously most originalist arguments. As with political correctness, radical right-wingers like to project their own historical revisionism onto their opponents. This is the fake nostalgia that is a defining feature of the reactionary mind, built as it is on historical amnesia, public ignorance, and invented traditions; and made possible through underfunded (mis-)education and failed journalism.

Original intent, really? Whose original intent? This oppressive and paternalistic elitism certainly wasn’t the original intent of the Sons of Liberty, the common revolutionaries, and the Anti-Federalist leaders inspired by the Spirit of ’76; not necessarily or entirely representative of the likes of:

Thomas Paine, Ethan Allen, Thomas Young, Levi Preston, St. George Tucker, Benjamin Edes, James Otis Jr., Joseph Warren, John Lamb, William Mackay, Alexander McDougall, Benjamin Rush, William Molineux, Isaac Sears, Haym Solomon, James Swan, Charles Thomson, Marinus Willett, Oliver Wolcott, Benjamin Church, Benjamin Kent, James Swan, Isaiah Thomas, Joseph Allicocke, Timothy Bigelow, John Brown, John Crane, Hercules Mulligan, Samuel Adams, Benedict Arnold, Patrick Henry, John Hancock, Joh, Mathew Phripp, Charles Wilson Peale, William Paca, Samuel Chase, Thomas Chase, Steven Cleverly, Joseph Field, George Trott, Henry Welles, John Scollay, John Rowe, William Phillips, Gabriel Johonnot, John Gill, Solomon Davis, William Cooper, Thomas Crafts, William Ellery, William Williams, Ebenezer Mackintosh, Henry Base, John Dickinson, Benjamin Franklin, Thomas Jefferson, James Madison, James Wilson, and many others.

Also, don’t forget women who were radical and righteous, rebellious and revolutionary, or else simply vocal and opinionated, but sometimes directly involved in the revolutionary war and sometimes taking up arms on the battlefield (Margaret Cochran Corbin, Mary Ludwig Hays, Deborah Sampson/Samson, etc), while others worked as militia, scouts, spies, message carriers, and took action in other ways (Prudence Cummings Wright, Catherine Moore Barry, Patience Wright, Lydia Darragh, Sibyl Ludington, Nanye’hi/Nancy Ward, Sarah “Sally” Townsend, Anna Strong, Agent 355, etc).

And consider certain members of the Daughters of Liberty such as Sarah Bradlee Fulton, Deborah Sampson Gannett, and Elizabeth Nichols Dyar. There also was Annis Boudinot Stockton, a published poet and the only female member of the secretive American Whig Society, and the mother of Julia Stockton Rush and so mother-in-law to the radical Benjamin Rush. She held that the human soul knew no gender. Phillis Wheatley was likewise a poet at the time but, as a slave, far less privileged than the wealthy Stockton. Having written a poem about George Washington in the hope of influencing him to live up to revolutionary ideals, Wheatley had the opportunity to read it to him in person and it was also republished by Thomas Paine.

Then there is Mercy Otis Warren, brother of James Otis and husband of James Warren (both major political figures) and a visitor of George Washington’s military headquarters, who was a more full-throated radical and feminist writer, not to mention an Anti-Federalist and supporter of the French Revolution: “Her analyses of war, her concern for the Native American, and her warnings against an established military and aristocracy based on wealth” (Judith B. Markowitz, “Radical and Feminist: Mercy Otis Warren and the Historiographers”). Another feminist was Judith Sargeant Murray who believed there was no difference in the intellectual abilities of men and women, that girls should get an education equal to that given to boys. Similarly, the feminist playwright Susanna Rowson wrote on education as well, along with having written the first geography textbook, and the most popular best-selling American novel until Harriet Beecher Stowe’s Uncle Tom’s Cabin was published more than a half century later.

Men, women, and individuals of other groups — the point isn’t that it is known exactly what position each of these people would’ve had about every major issue, but one thing that is clear is the disagreement was loud and contentious. The fighting of the revolution, the founding of the country, and the framing of the founding documents was borne out of a clash of diverse views and motivations. Not even all rich, white males of the landed aristocracy and other colonial elites were socially conservative and anti-democratic. We should be talking about original intents, not original intent.

There was always heated debate over American values and principles going back to the colonial era, the debate having been particularly heated in the constitutional convention and having continued ever after — a large reason why the party system developed right from the beginning based on the never resolved conflict between Federalists (pseudo-Federalists) and Anti-Federalists (real Federalists), among other schisms. Opposition to unrepresentative elite rule in London (not to mention unelected elite rule in the British East India Company) was the whole motivation for the American Revolution, something that bothered the colonial elites as much as anyone else. Among the Signers of the (second) Constitution, many were signing under dissent and only with the promise of an Anti-Federalist Bill of Rights that expressed alternate and opposing original intents. The final document was a hodgepodge of clashing and conflicting original intents stitched together like Frankenstein’s monster.

As for the original intent of the pseudo-Federalist framers who won the war of rhetoric and seized power through the coup of an unconstitutional constitutional convention, they exceeded and betrayed their public mandate as the unanimously-passed Articles of Confederation required a unanimity to change it, a requirement that was not met in initially passing the new constitution. Why does the original intent of only one minority faction count? What about the original intent of everyone else? Why don’t we instead heed the original intent of the actual founding documents, the far more democratic Declaration of Independence and Articles of Confederation? Or what about the original intent of the radical and rabblerousing tract Common Sense without which, John Adams argued, there would have been no successful revolution and hence no United States?

As for the United States Constitution, technically the second constitution, the original intent of the right-wing framers who took control of the constitutional convention was reactionary and counter-revolutionary. To that extent, present-day right-wingers are partly correct that the original intent of this narrow group of framers does conform to the authoritarian and social Darwinian aspirations of the present GOP. The fact of the matter is that the country was founded on slavery, plutocracy, violent oppression, and class war. Think about the continuing conflict of Shays’ Rebellion that led this particular elite to push for a constitutional convention.

At the time, there was no majority that agreed upon a lone original intent that was spelled out and isolated from all larger social, political, and historical context — and probably few, if any, had any expectation that there could or should be one original intent to rule them all. As such, what about the original intent behind the influences to the second constitution, such as the division of power in the Iroquois Confederacy or the anti-imperial republicanism of the Basque? And following the pre-revolutionary uprising against the British East India Company, what about the original intent of mistrust that so many founders and framers had toward the corrupting force of large corporate and banking interests, as they articulated in new laws restricting their power?

Original intent was never a specific set of claims conceived of and agreed upon by a consensus of unified leadership but a larger debate that extended and developed over time, shifting within American public debate and public opinion. If you could have asked a thousand Americans before, during, and after the American Revolution what was their original intent, they likely would have given you a thousand answers. The very idea of an original intent would have been contested, maybe dismissed and ridiculed by no small number of early Americans.

Many slaves, some having fought in the Continental Army, believed that revolution promised them the freedom espoused in the Declaration of Independence and, based on that original intent, many would continue to revolt long after the white man’s revolution ended, continuing after the last class war uprisings like the Whiskey Rebellion were put down. In the case of Elizabeth “Mumbet” Freeman, a slave in Massachusetts, she used access to legal representation to win her freedom in court. Other slaves, in taking seriously the ideals of the American Revolution, took freedom into their own hands and sought the direct path of escape. And we can’t forget how the living memory of the revolutionary era inspired many decades of slave revolts in the lead up to the American Civil War, what some call the Second American Revolution. Maybe the original intent took a while to more fully gain traction.

The promise of revolutionary rhetoric also incited feminist fervor, as Abigail Adams warned John Adams in telling him, “Remember the Ladies, and be more generous and favourable to them than your ancestors. Do not put such unlimited power into the hands of the Husbands. Remember all Men would be tyrants if they could. If perticuliar care and attention is not paid to the Laidies we are determined to foment a Rebelion, and will not hold ourselves bound by any Laws in which we have no voice, or Representation.” Still in the revolutionary era, there was the widely read and influential feminist texts by Mary Wollstonecraft, A Vindication of the Rights of Woman (1792). That is a text, by the way, that Annis Boudinot Stockton would read and comment upon, combining criticism and praise.

Considering all of these Americans who made possible the creation of a new country, what about the original intent of those who continued to be oppressed, victimized, and silenced? In ignoring the original intent of the majority of citizens, revolutionaries, and Anti-Federalists (true Federalists); poor white men, women, blacks, and Native Americans; et cetera; and instead in exclusively (exclusionarily) prioritizing the original intent of one authoritarian and imperialistic segment of the plutocracy, today’s Republicans and other varieties of the radical right-wing fringe should, on principle, be openly and honestly advocating for slavery, aristocracy, plutocracy, paternalism, and imperialism while fighting against the basic democratic rights of most of their own supporters and followers, not to mention seeking to end the tyranny of their corporate funders and cronies.

Upon the passing of the second constitution, blacks and most minorities couldn’t vote or run for office. Neither could women or most white men who were poor and landless. Then again, corporations — not conflated with private business ownership at the time — also were left quite powerless in the post-revolutionary period or at least severely limited in scope as being legally limited to organizations that served the public good for short periods (building a bridge, establishing a hospital, etc). This was according to the original intent of one generation having no right to impose upon later generations, which is to say each generation was assumed by many to have their own separate original intents and, in the case of Thomas Jefferson, each generation was expected to have their own new constitutions.

By the way, there is nothing more contrary and alien to constitutional original intent than corporate personhood. Some of the worst founders may have been authoritarian and despotic, but one thing few of them could’ve been accused of was being corporatists. As horrific as was slave-based capitalism, it was not corporate capitalism. Such authoritarian oppression was much more personal and paternalistic, quite unlike the cold and distant corporatocratic political order that has since come to rule our society. Corporations were never intended to be treated as persons with civil rights. Heck, in early America, many actual humans weren’t treated as having legal personhood. The definition of legal personhood had severely limited application in the bad ol’ days, and that has everything to do with why democracy has always struggled to take hold in American society.

In fact, in the immediate aftermath of the constitutional coup, Americans had less voting rights than they had under the British Empire. Only about 3% of the population were represented in this supposedly representative republic that Republicans idealize. Many democratic reforms, including abolition of slavery, ironically happened more quickly in the British Empire than in the former American colonies. It required many generations of Americans fighting for their rights in opposition to an oppressive original intent that we have managed to get to the point of having the pretense of a half-assed democracy, if in reality it’s a banana republic.

Right now, Republicans are seeking to push originalist Amy Coney Barrett into the supreme court, and yet under the original intent of the misogynistic and patriarchal framers no woman would be allowed to vote, much less allowed to be nominated to the supreme court. If Barret is an originalist, she should immediately decline her appointment, step down from power, retire from her professional career, and become a housewife. The political right is being extremely selective about which original intents they praise and which they conveniently ignore or obfuscate. That is to say the entire originalist argument is disingenuous; i.e., bullshit.

The right-wing demagogues and corporatocratic social dominators are being blatantly dishonest in their seeking to seize power and maintain the status quo of a caste system of vast disparities. If they were honest about their intentions of authoritarian elitism and police state oppression, even most conservatives and Republicans wouldn’t support them. Without lies and deception, they could never win any election, no matter how much they control and manipulate our political system and electoral process through the anti-majoritarian constitution, senate, supreme court, gerrymandering, voter purges, dark money, lobbyists, revolving door politics, regulatory capture, etc. A genuine public debate and fair political contest over the legitimacy of such elite rule would end in defeat, if it wasn’t hidden behind false rhetoric of culture wars and stale Cold War propaganda.

Most Americans would not in full understanding agree to authoritarianism that operated out in the open, but that is the whole point of the anti-majoritarian agenda. It doesn’t require majority support and, in fact, must avoid it at all costs. There is no silent majority of Americans who are authoritarian followers demanding to be further silenced by an anti-majoritarian elite. The actual silenced majority is kept ignorant, cynical, and disenfranchised in order to prevent them from realizing the power they possess through their sheer numbers, the power through which they could claim their own freedom of self-governance, the original intent that inspired the revolutionary generation.

Whose original intent? Why should we care about, much less submit to, the desires and demands of our oppressors? Quo warranto. By what right? Besides, what power do the dead have over the freedom of the living? Or rather, what legitimacy does the present generation of self-proclaimed ruling class have to speak on behalf of a past generation of self-proclaimed ruling class, in their moving corpses about like grotesque puppets? Who has the audacity to declare the original intent of those no longer around to speak for themselves? And how can such presumptions take away our right and responsibility to decide for ourselves as a people, to organize and govern as we see fit?

A constitution, as Anti-Federalists and Quakers understood, is the living agreement of a people. There is only one question we must ask ourselves and only we can answer it. What is our intent? What are the hopes that inspire us and the aspirations that drive us, the ideals that sustain us and the visions that guide us? What are we willing to fight and die for as past generations did? We aren’t limited to the intents of our predecessors, but we might learn from their example in how they refused the intents of others over them. To put it in stark terms, do we intend to be enslaved or free?

* * *

The Tyranny of the Minority, from Iowa Caucus to Electoral College
Corey Robin

Even with their acceptance of slavery and a highly restricted franchise, many of the Framers were uneasy about the notion that some people’s votes might count more than others. When one group of delegates proposed that each state, regardless of the size of its population, should have an equal vote in Congress, James Madison denounced the plan as “confessedly unjust,” comparing it to the scheme of “vicious representation in Great Britain.” State-based apportionment, claimed Pennsylvania’s James Wilson, would only reproduce the inequality of Britain’s rotten boroughs, where a nearly depopulated Old Sarum—described at the time as sixty acres without a home—had two representatives in Parliament, while London, with 750,000 to one million residents, had four.

Madison and Wilson lost that debate; the United States Senate is the result. Within a year of the ratification of the Constitution, the 50,000 free residents of Delaware, the least populous state in the nation, had the same number of senators as the 455,000 free residents of Virginia, the most populous state. That makes for a ratio of power of nine to one. Today, according to a recent report by the Roosevelt Institute, that ratio has expanded to sixty-seven to one. Wyoming’s 583,000 residents enjoy as much power in the Senate as the nearly 40 million residents of California. (In the Electoral College, the power ratio is four to one.)

Eighteen percent of the American population—on average, whiter and older than the rest of the population—can elect a majority of the Senate. If those senators are not united in their opposition to a piece of legislation, the filibuster enables an even smaller group of them, representing 10 percent of the population, to block it. Should legislation supported by a vast majority of the American people somehow make it past these hurdles, the Supreme Court, selected by a president representing a minority of the population and approved by senators representing an even smaller minority, can overturn it.

The problem of minority rule, in other words, isn’t Trumpian or temporary; it’s bipartisan and enduring. It cannot be overcome by getting rid of the filibuster or racist gerrymanders—neither of which have any basis in the Constitution—though both of these reforms would help. It’s not an isolated embarrassment of “our democracy,” restricted to newly problematic outliers like the Electoral College and the Iowa caucuses. Minority rule is a keystone of the constitutional order—and arguably, given the constitutional provision that “no state, without its consent, shall be deprived of its equal suffrage in the Senate,” not eliminable, at least not without a huge social upheaval.

The Vague and Ambiguous US Constitution

We know from documents and writings of the time that the founders didn’t agree on the Constitution before, during, and after it was written. They couldn’t even agree on whether it should be written, with many fighting against it on principle. The debates were harsh and sometimes violent, nearly tearing the country apart before it had been fully established.

Others only agreed to the Constitution if a Bill of Rights were to be added, while others resisted a Bill of Rights for the very reason they were seen as too specific. It should be noted that the Bill of Rights, the most detailed part of the Constitution, was only added later (ratified years after the Constitution) and was the most strongly contested part. Yet, it too has problems, as Leonard W. Levy explained (Original Intent and the Framers’ Constitution, p. 340): “Even the seemingly specific injunctions and provisions of the Bill of Rights are vague, requiring much interpretation.”

The Articles of Confederation was much more specific in the described limits to power and rights to citizens. Many who sought the new Constitution did so in order to weaken this aspect.  Even so, the Articles had conflicting layers of meaning, just like the later Constitution. It was written by the Federalist John Dickinson whose thought was shaped by Quaker constitutionalism (as a living document, a specific people at a specific place and time making a specific covenant with God), but then the document was filtered through a revision of non-Quaker Anti-Federalist thought.

This kind of mixing and sometimes inconsistency was simply par for the course. Even in the Declaration of Independence was intentionally vague. It was an inspirational document of solidarity, not a clear explication of specific principles. Some interpret it as espousing natural law and natural rights, even though there is strong evidence that Thomas Jefferson didn’t support this view. Also, Dickinson’s Quaker influence was in opposition to natural law. But it is true that other founders did believe in it, and hence the need for unclear language that could be interpreted variously.

None of this should be surprising. The colonists didn’t just come from different colonies, some from the coastal cities and others from the frontier. Among those who weren’t colonial born, many came from a diversity of countries and from culturally distinct regions of the same countries. The colonial population, including the founders, included a diversity of ethnicity, religion, and political traditions (consider the mixed ideas of freedom and liberty). Without ambiguity and equivocation in the founding texts, it’s unlikely independence would have been won, a constitution agreed upon, and a functioning government instituted.

The Constitution was seen as a compromise, a temporary truce in the debate. The Founders decided to intentionally keep the wording at a surface level, for anything deeper would have led to irresolvable conflict. Many of them figured that either it would be revised later on or that maybe an entirely new constitution would take its place. Benajmin Franklin, for example, thought it would only last for a decade. Jefferson was a bit more extreme in that he thought not just new constitutions but new revolutions would be necessary.

* * * *

The Irony And Deceit Of Constitutional ‘Original Intent’ Arguments
By David K. Sutton (from The Left Call)

If there is one “original intent” we know of the Founding Fathers it is that they wrote the constitution intentionally vague. This is an important distinction to understand. What is or isn’t constitutional is decided by the judicial branch. This is because most legislative provisions simply are not mentioned in the constitution, therefore it is up to the judicial branch to interpret the words of the constitution, if these provisions face legal challenge.

E.J. Dionne reminds us of the preamble to the United States Constitution. It reads:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Dionne reminds us of the importance of those first few words, “We the People.” It is up to us to decide the path of this great country. It is no longer in the hands of the Founding Fathers. They crafted a framework that we can build on to move the country forward. This is why those who subscribe to an ideology of strict original intent have it wrong. The only intent we can ascertain is from the written text of a purposely vague document, the constitution. Beyond that it is up to “We the People” to make the country adapt and work better for all citizens as times change “in Order to form a more perfect Union.” There was no original intent when it comes to universal health care or climate change or any number of important issues that we now face. If we get bogged down in arguments over original intent we ironically lose sight of the real original intent.

Original Intent and the Framers’ Constitution
By Leonard W. Levy
p. XI, Preface

“Tis funny about th’ constitution,” said Mr. Dooley, the philosophic Irish bartender created by Finley Peter Dunne. “It reads plain, but no wan can undherstant it without an interpreter.” The Supreme Court is the official and final interpreter of the Constitution, but from the beginning of its history, disputes have raged about how it should interpret the Constitution. In its very first constitutional decision the Court provoked a controversy on the question whether its judgment faithfully adhered to the intentions of the Framers of the Constitution. For several decades after the ratification of the Constitution the fading memories of those who had attended the Philadelphia Constitutional Convention supplied the main evidence of the Framers’ intent. Even when those memories were fresh, the Framers disagreed vehemently about what the Convention had meant or intended, as the controversy in 1791 over the chartering of the Bank of the United States showed. Not until the publication of Madison’s Notes in 1840 did a source become available for original intent analysis. […]

Original intent as constitutional theory is rarely if ever at issue in real cases decided by the Supreme Court. When the Court employs original intent, it refers to the understanding of the Framers respecting a particular provision of the Constitution that is imprecise. In real cases the meaning of the provisions involved in litigation is not clear. Indeed the Constitution tends to be least clear when most involved in litigation; that is especially true of rights as compared with matters of structure. Some of the most important clauses of the Constitution are vague, ambiguous, or, paradoxically, too specific in meaning. The most important evidence of original intent is the text of the Constitution itself, which must prevail whenever it surely embodies a broader principle than can be found in the minds or purposes of its Framers. For example, they had political and religious expression in mind when they framed the First Amendment, but its language contains no restriction. They probably did not mean to extend the rights protected by the Sixth Amendment to “all” criminal prosecutions, but the text says “all” and deserves obedience. They had black Americans uppermost in mind when they designed the Fourteenth Amendment, but its expansive expression applies to all, not only to all races but to people of all religions, creeds, and national or ethnic backgrounds, regardless of legitimacy, sex, or alienage.

Conversely, if two centuries of constitutional government have resulted in wider understanding than the text itself suggests, that is, if the meaning of the text has become expanded beyond its literal phrasing, the text takes second place. Thus, although the Framers did not include “words” as well as “persons, houses, papers, and effects” in the Fourth Amendment and although eavesdropping was commonplace in the eighteenth century, words seized by wiretapping and electronic eavesdropping come within the amendment’s protection against unreasonable search and seizure. Similarly, the right against compulsory self-incrimination protected by the Fifth Amendment seems, literally, to apply only in “criminal cases,” but the text applies with equal force to nonjudicial proceedings such as grand jury and legislative investigations, to administrative proceedings, and even to civil cases in which questions are posed that might, if truthfully answered, raise a threat of criminal jeopardy. Notwithstanding some advocates of a jurisprudence of original intent, the Constitution cannot be interpreted literally, if only because it is murky at important points. Were it not, the real cases would not keep arising.

p. XIV, Preface

The process of seeking original intent is elusive, if not illusive, because the fundamental text may be ambiguous and vague, or overarches a particular situation. […]

“Original intent” is not a well-chosen term but it is commonly used and widely understood to mean what the Constitutional Convention understood or believed about the Constitution. Intention, intention, and intendment may be distinguished but I do not find the distinctions fruitful in a discourse meant for nonlawyers. Intent may refer to motive, to purpose, even to reasons, but I think that the commonplace usage of intent, in the context of the debate about the “original intent” of the Framers, refers to what they meant. Nevertheless, “intent” is unsatisfactory because it implies a single or uniform frame of mind, or purpose, or understanding on the part of the Framers of the Constitution and even of the ratifiers of the Constitution. “Original intentions” would have been a far better term.

p. 20-21

But the sense of the nation was not easily discovered or discoverable, not even as to major allocations of power, let alone as to the meanings of particular clauses. So Madison argued in The Federalist #37. He believed that to allocate authority between the federal and state governments and between the three branches of the federal government created problems that perplexed even statesmen, jurists, and philosophers. The Constitution necessarily contained ambiguities. It reminded him of laws that had been framed with the greatest technical skill and passed in fullest deliberation, yet remained “more or less equivocal, until their meaning be . . . ascertained by a series of particular discussions and adjudications.” Words stated ideas imperfectly, giving them an “unavoidable inaccuracy” that increased with the complexity and novelty of a task such as strengthening the Union. Madison offered various reasons for “vague and incorrect definition,” any one of which resulted in obscurity of meaning. The Convention, he concluded, “must have experienced the full effect of them all.” 81

How then was the meaning of the Constitution to be fathomed? Madison believed that experience fixed meaning in doubtful cases but that meaning was not fixed forever. He would have preferred a static Constitution, and he resisted, even deplored, certain changes in meaning. He probably had in mind the Hamiltonian financial system, the Sedition Act, and overbroad judicial opinions such as those in McCulloch v. Maryland and Cohens v. Virginia when he said that deviations from the “fair construction of the instrument have always given me a pain,” and he wished that innovations based on overbroad constructions would cease; but he knew that change was inevitable. 82 He would have preferred to believe that the Constitution speaks for itself according to the usual and established rules of interpretation, for which intention cannot be substituted. And he advocated that whenever possible the language of the Constitution should be construed according to the people’s understanding as evidenced by “contemporaneous expositions.” 83

But he understood that just as words changed in meaning, so did the Constitution. “It could not but happen, and was foreseen at the birth of the Constitution,” he declared, “that difficulties and differences of opinion might occasionally rise in expounding terms and phrases necessarily used in such a charter,” especially as to the powers in the federal system. Practice would settle some doubtful matters, and the meaning of the Constitution, to the extent that it depended upon judicial interpretations, would emerge from decisions over a period of time. 84 Madison conceded that experience had caused him to change strong opinions on some matters. For example, he once thought that the Constitution prohibited Congress from chartering a bank, but he had been compelled to change his mind, because the sovereign will had expressed itself by acquiescence in a course of exposition that altered the original meaning of the Constitution. Popular understanding simply had overruled his previous views of the matter. When an authoritative, uniform, and sustained course of decision or practice received “public sanction,” Madison believed that the Constitution evolved in meaning, and the old must give way to the new. 85 When the words that composed a text altered in their meaning, “it is evident that the shape and attributes of the Government must partake of the change to which the words and phrases of all living languages are constantly subject. . . . [O] ur Constitution is already undergoing interpretations unknown to its founders. . . .” 86 Similarly, he observed: “Some of the terms of the Federal Constitution have already undergone perceptible deviations from their original import.” 87 Those were not facts that he applauded; rather, he personally disapproved but understood and acquiesced.

p. 208-210

What import did the free press clause possess at the time of its adoption? Its meaning was surely not self-evident. The controversy in the states over the ratification of the Constitution without a bill of rights had revealed little about the substance and scope of a free press, and the debates by the First Congress, which framed the free press clause, illumined even less. Congress debated the clauses on religion, but on the remainder of the First Amendment it considered only whether the right of peaceable assembly vested the people with the power to instruct their representatives on how to vote. In the course of that discussion, Madison made the only recorded statement on the subject of speech or press. If by peaceable assembly, he said, “We mean nothing more than this, that the people have a right to express and communicate their sentiments and wishes, we have provided for it already. The right of freedom of speech is secured; the liberty of the press is expressly declared to be beyond the reach of this Government. . . .” 62 Any interpretation of the meaning and compass of the free press drawn from this vague statement would strain credulity.

The state legislatures that ratified the First Amendment offer no enlightenment either. Without the records of their legislative debates, we do not know what the state legislatures understood the free press clause to mean. Other contemporary materials do not help either. Most people undoubtedly cared about protecting freedom of the press, but no one seems to have cared enough to clarify what he meant by the subject upon which he lavished praise. If definition were unnecessary because of the existence of a tacit and widespread understanding of “liberty of the press,” only the received or traditional understanding could have been possible. To assume the existence of a generally accepted latitudinarian understanding that veered substantially from the common law definition is warrantless, given the absence of evidence. Any novel definition expanding the scope of free expression or repudiating, even altering, the concept of seditious libel would have been the subject of public debate or comment. Not even the Anti-Federalists offered the argument that the clause on speech and press was unsatisfactory because it was insufficiently protective against prosecutions for criminal defamation of the government. Not even they urged that truth could be no libel.

Even if we assume that the Framers really intended to impose upon the national government “an absolute, unqualified prohibition” 63— there shall be no law abridging freedom of the press— we should recognize that the Framers cared less about giving unqualified immunity to all discourse than they cared for states’ rights and the federal principle. […]

 

The big question persists, however: Even had Congress passed, and the states ratified, an amendment imposing upon the states the same prohibition laid by the First Amendment upon the national government, what did the Framers understand by freedom of speech and freedom of press? No one can say for certain what the Framers had in mind because there is not enough evidence to justify cocksure conclusions, even though all the evidence points in one direction. Whether the Framers themselves knew what they had in mind is uncertain. At the time of the drafting and ratification of the First Amendment, few among them clearly understood what they meant by the free press clause, and we cannot know that those few represented a consensus.

pp. 318-319

The Court missed the fact that the vague clause on “capitation and other direct taxes” was a concession to the South, not, as the Court generalized, a bulwark of “inequality” imposed “to prevent an attack upon accumulated property by mere force of numbers.” 135 Moreover, the Court drew the wrong conclusion after quoting Madison’s Notes: “Mr. King asked what was the precise meaning of direct taxation. No one answered.” The right conclusion is that the Framers were unsure or did not know. 136 In his argument as counsel for the government in the Carriage Tax Case of 1795,137 Hamilton had asked what the distinction was between direct and indirect taxes, and he began his response by stating, “It is a matter of regret that terms so uncertain and vague, on so important a point, are to be found in the Constitution. We shall seek in vain for any antecedent settled legal maxim to the respective terms. There is none.” 138 In the Income Tax Cases, the Court imposed its own views of history in order to deliver an opinion that seemed to have the paternity of original intent; in effect the Court sought to rely on the wisdom of the Framers to get around encumbering precedents.

pp. 331-335

The text is what counts, but the notion that it must be construed according to original intent is itself a prejudice. It is, moreover, a notion that lacks original intent. That is, no evidence, not a shred, exists to show that the Framers meant, wanted, or expected future generations to construe the Constitution as they, the Framers, had. Nor is there any evidence to show that they expected the future to be bound by the past. Rather, they expected the future to interpret the Constitution as best it could, just as the development of the common law was left open. The text of the Constitution declares it to be the supreme law of the land together with treaties and laws made in pursuance of the Constitution. By binding state courts to follow the supreme law and by extending the judicial power of the United States to that law, the Constitution obligates courts to expound its meaning. In that regard the intention of the Convention clearly appears in the Constitution itself. As Hamilton wrote in The Federalist #22, the “true import” of treaties and laws that constitute the supreme law of the land must “be ascertained by judicial determination.” 21 Madison, who blew hot and cold on judicial review and defended the right of the President and Congress to decide constitutional questions for themselves, acknowledged that “in the ordinary course of government, . . . the exposition of the laws and Constitution devolves upon the judicial.” 22

Unlike John Locke, an inept constitution-maker who believed that written statements of the fundamental law must, like the laws of the universe, be immutable to be eternal, the Framers of the Constitution recognized the need for plasticity and the inevitability of change. Locke once wrote a constitution for the Carolinas expressly providing that “every part thereof, shall be and remains the sacred and unalterable form and rule of government, for Carolina forever.” As insurance he prohibited “all manner of comments and expositions.” 23

For the most part the Convention designed the Constitution with the utmost diligence and attention to detail. Almost always the Constitution is explicit. The Convention chose words with craft and craftsmanship, on the whole. That is the reason that constitutional law does not involve the bulk of the Constitution. It does not have to be litigated because it is clear and understandable. Consequently, one who carefully reads the Constitution finds startling the occasional vagueness and ambiguities, such as the provision requiring no “capitation, and other direct tax” unless apportioned among the states on the basis of population. Although we believe that the Framers regarded as direct taxes only taxes imposed on people per capita and on land, 24 they did not say so. Because the Constitution is overwhelmingly a model of precision and pithiness, an open-ended phrase like “other direct tax” must have been deliberate.

That phrase appears in the midst of a list of prohibitions. The Constitution clearly describes the three branches of the national government but seems to waffle when describing some prohibitions, some powers, and some rights. As to them we find ambiguities and vagueness. During the ratification controversy, Anti-Federalists lambasted the Constitution because of its lack of clarity in crucial respects. They feared that uncertainty in meaning would sap states’ rights and civil rights. The “necessary and proper” clause was their particular bête noire. Even Edmund Randolph, who had introduced the Virginia Plan at the Convention (Congress “ought to be impowered to . . . legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted” by state acts25), stated during the ratification controversy that he objected to the necessary and proper clause because “the clause is ambiguous.” 26 In The Federalist #37, Madison sought to answer the ambiguity charge leveled at many clauses when he wrote:

All new laws, though penned with the greatest technical skill and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. Besides the obscurity arising from the complexity of objects and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas. Perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated.

Here, then, are three sources of vague and incorrect definitions: indistinctness of the object, imperfection of the organ of conception, inadequateness of the vehicle of ideas. Any one of these must produce a certain degree of obscurity. The convention, in delineating the boundary between the federal and State jurisdictions, must have experienced the full effect of them all.

To the difficulties already mentioned may be added the interfering pretentions of the larger and smaller States. . . . The real wonder is that so many difficulties should have been surmounted, and surmounted with a unanimity almost as unprecedented as it must have been unexpected. 27

Another signer of the Constitution, Abraham Baldwin of Georgia, confronted the issue of ambiguity as a member of the Congress that debated Jay’s Treaty. Baldwin declared:

He would begin it by the assertion, that those few words in the Constitution on this subject, were not those apt, precise, definite expressions, which irresistibly brought upon them the meaning which he had been above considering. He said it was not to disparage the instrument, to say that it had not definitely, and with precision, absolutely settled everything on which it had spoken. He had sufficient evidence to satisfy his own mind that it was not supposed by the makers of it at the time, but that some subjects were left a little ambiguous and uncertain. It was a great thing to get so many difficult subjects definitely settled at once. If they could all be agreed in, it would compact the Government. The few that were left a little unsettled might, without any great risk, be settled by practice or by amendments in the progress of the Government. He believed this subject of the rival powers of legislation and Treaty was one of them; the subject of the Militia was another, and some question respecting the Judiciary another. When he reflected on the immense difficulties and dangers of that trying occasion— the old Government prostrated, and a chance whether a new one could be agreed on— the recollection recalled to him nothing but the most joyful sensations that so many things had been so well settled, and that experience had shown there was very little difficulty or danger in settling the rest. 28

Although the Framers were masters of the art of the possible, sometimes their compromises led to cloudy language; sometimes they could not compromise and deliberately left the phrasing of a proposition open-ended to avoid still greater offense by spelling out something better left only partially said.

Ambiguity and vagueness crop up in the nonstructural sections of the Constitution. Ambiguous words permit different understandings, while vague words do not allow for much understanding.

Representative Words: Po litics, Literature, and the American Language, 1776-1865
By Thomas Gustafson
pp. 294-7

Indeed, in the early republic much of the passion and most of the power struggles over such questions as the national bank, the tariff, and slavery were channeled into the forum of constitutional debate, and the words of the text were constructed and reconstructed by the various parties to support diverse and contradictory points of view. And in American there is no consensus about the sovereign center that was to end the infinity of interpretation, because the Constitution, in effect, had divided the center between several branches of government and the states while theoretically locating it in that inherently diversity entity the vox populi. But while there was no consensus about the meaning of the words of the Constitution, there was a fundamental agreement until the crisis over slavery in the mid nineteenth century that the Constitution was the grammar that provided the rules for framing the articulation and resolution of differences between sources of authority and modes of representation in the American republic. Like language itself, the Constitution has the capacity to reconcile stability and liberty, order and change. It is a langue—a fundamental system of grammar, syntax, and vocabulary—that structures the process by which the vox populi articulates new paroles: new amendments, new political representatives. The Constitution’s ability to sustain a tension between stability and liberty, mediating conflicts between the party of memory and the party of hope, was tested to the breaking point in antebellum America as the country began to fight a war of words over attempts to settle and reconstruct its language.

Retraction and Coda

I have argued so far that the language of the Constitution is ambiguous, that the framers designed it in part to be ambiguous, that the Antifederalists distrusted that amibuity, and that Madison defended its ambiguity. But if we heed Walter Benn Michael’s argument in “Against Formalism: Chicken and Rocks,” then I must retract part of my argument and maintain that the language of the Constitution is no different from the language of any text: it is not inherently ambiguous, not is it inherently clear. Though we ascribe properties such as ambiguity and clarity to texts, these properties, Michaels asserts, do not belong to the text but are “functions . . . of the contexts in which texts are read.” An explicit text is, simply, a text whose meaning is not under dispute; and an ambiguous text is, conversely, a text whose meaning is contested. Read from a single perspective at a certain moment, the phrases “We the People” and “freedom of speech” may appear as perfectly unambiguous as, say, the phrase “a pound of flesh” in Act I of the Merchant of Venice.  But with a change of fortune or in a new context or viewed from more than one angle of vision, meanings proliferate, and ambiguity must be confronted: an ambiguity that reflects our attention back to our eyes (or the ideology) of the beholders. E. L. Doctorow switches our focus in this very way when he explains in a meditation on the Constitution as a text:

All told, it is as if the enigmatic constitutional text cannot be seen through, but, shimmering in ambiguity, dazzles back at each generation in its own times and struggles it is as if the ambiguity is not in the text but in us as we struggle in our natures—our consciences with our appetites, our sense of justice with our animal fears and self-interests—just as the Founding Fathers struggled so with their Constitution, providing us with a mirror of ourselves to go on shining, shining back at us through the ages, as the circumstances of our lives change, our costumes change, our general store is transformed into a mile-long twenty-four-hour shopping mall, our trundle carts transmogrify into rockets in space, our country paves over, and our young republic becomes a plated armory of ideological warfare: a mirror for us to see who we are and who we would like to be, the sponsors of private armies of thugs and rapists and murderers, or the last best hope of mankind.

The Constitution, in this reading, is a vessel for our passions and prejudices—and for our principles. The text, and its interpretations, however, have been more than a mirror representing our values. They have been sources of enlightenment, a lamp projecting values, shaping people to the order (and abuses) of the word and, more important perhaps, determining how we resolve—or seek to resolve—our clashes of values.

If rhetoric as Yeats claims, arises from our quarrel with others, and poetry from our quarrel with ourselves, then the Declaration tends to be rhetoric, and the Constitution to poetry More than the Declaration, the Constitution is the ground of American Renaissance literature. The conflicts between union and liberty, freedom and slavery, the tyranny of the majority and the rights of the individual, the protection of regional identity (states’ rights) and the quest for national identity (consolidation) and between property rights and human rights; these moral and political conflicts, inscribed in the texts of the Constitution, take form first as the stuff of textual battles in the constitutional crises of the nineteenth century and then, inscribed in the plots, as the stuff of American Renaissance literature. even the confrontation with slavery—the confrontation that demanded that American writers listen less to the courtly muses of Europe and more to the principles of the Declaration—was first and foremost (and finally) a constitutional crisis: a question of resolving the ambiguity of “We the People of the United States” and of deciding whether or how to privilege one constitution value, one legal precedent, over and against another. The silences of the Constitution, the gaps in its articulation, its contradictions had to be overcome, and they came to be bridged not just by the voice of the law or the voice of political representative. […] Even Whitman, for all his rebellion against poetic form, for all his personal disgust with slavery, for all his outspokenness, demanded obedience to the Constitution of 1789 and its sanction of slavery. But the Word of God, the book of nature, and the Declaration became, at first and then more and more in the North, alternative grammars of thought: a higher langue for generating transcendental paroles and emancipation proclamations.

The Constitution, if we consider it to be a grammar, possesses the capacity—or we have made it possess the capacity in its history—to incorporate in its workings more than one language. It can, that is construct or generate sentences from more words than its own dictionary of terms contained in the four corners of the text. “Is the Constitution,” Laurence Tribe asks, “. . . at war with its own premises?” “Perhaps,” he responds, “it speaks in the words of Walt Whitman: ‘Do I contradict myself? Very well then, I contradict myself. I am large. I contain multitudes.'” The Constitution can speak in as many tongues as Whitman sought to represent; it can listen to as many voices as Whitman heard (and more); it can be for new readers, as Whitman’s children, a “chant democratic” that helps form, in the spirit of our bard, our most Orphic visionary, “a great aggregate Nation.”