The mirror that is our Founding Fathers

A while back, I mentioned that question of what the Founding Fathers meant in the Constitution——what’s sometimes called original intent——was worth a post. So here it is.
It’s a subject on which I have mixed thoughts. On the one hand, the idea we should respect the meaning, not just the letter of the Constitution, sounds sensible, within reason. For example, the argument in some Fourth Amendment cases that high-tech surveillance (infrared scanners to spot grow rooms for instance) doesn’t require a warrant as it’s not anything the Founders would have thought of as a search is not (IMHO and in at least some courts’ opinions as well) a reasonable one.
On the other hand, I’ve noticed over the years that almost everyone who brays about their devotion to original intent happens to think the Founders’ original intent coincides exactly with their own views (I include myself in this category a lot of the time). Whatever their opinion on business regulation, government aid programs such as Social Security, environmental rules, flag-burning or abortion, their careful, deep study of the Founders invariably proves they’re in 100 percent agreement; whatever the speaker thinks America should do, it’s exactly what the Founders want.
Even people who want to amend the Constitution frequently insist they’re not really amending it, they’re returning it to the original meaning the Founding Fathers intended. The Founders clearly didn’t think the First Amendment applied to flag-burning, one such argument goes, so an amendment banning it would correct all those liberal judges who misinterpreted it.
Sometimes the problem is not so much that the original-intent view is wrong as that it’s dogmatic: I alone (or my political party, church, NGO) understand what the Founding Fathers were trying to say! Everyone who disagrees with me is not merely wrong, they’re obviously wrong!
Sometimes, of course, they are wrong. A standard argument by some members of the religious right is that “obviously” the First Amendment doesn’t protect anyone outside of Christians, or Protestants, or that the establishment clause only applies to the Anglican Church or the Catholic Church (or Muslims, or Jews) so it doesn’t prevent their church from running the country with Biblical law. The fact one widespread criticism of the Constitution back in the day was that it granted rights to Christians and non-Christians alike (why, with no religious tests for office, a Jew or a Muslim could become president!) seems to have slipped by them. I’d say the same of the Bush Administration’s claim the Founders wanted a dictator who can ignore all laws and Constitutional requirements.
Sometimes the problem is that the Constitution isn’t clear. Does the Ninth Amendment imply that judges can establish Constitutional rights not listed in the Bill of Rights? How does the Full Faith and Commerce Clause (which requires states honor each others’ legal rules) work when states have different laws?
Another part is that in America’s “civil religion” the Founders are the prophets, the Constitution and Declaration the holy texts. Just as many Christians find what they want to find in the Bible, Americans can find what they want in the Founders’ words: They’re liberals, conservatives, gun nuts, Christians, freethinkers, snobs, radicals——pick any classification, you can find grounds for it somewhere in the 1700s.
Original intent sounds good when applied to the Constitution; as I noted at the link above, it’s not at all binding outside of our founding texts. But like religion, it’s not as easy, simple and clear-cut as believers like to make it sound.

3 Comments

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3 responses to “The mirror that is our Founding Fathers

  1. Pingback: Links « Fraser Sherman's Blog

  2. Pingback: Rick Santorum implies gay marriage is as big a mistake as slavery « Fraser Sherman's Blog

  3. Pingback: Ratification, part two | Fraser Sherman's Blog

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