Original Intent

Author:Jack N. Rakove

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"Original intent" is a shorthand term for both a familiar topic of CONSTITUTIONAL HISTORY and a problematic theory of CONSTITUTIONAL INTERPRETATION. As a historical problem, the quest for original intent seeks to discover what particular provisions of the Constitution meant at the moment of their adoption, whether to the Framers in the CONSTITUTIONAL CONVENTION OF 1787 (or Congress, in the case of subsequent amendments), the ratifiers in the state conventions and legislatures, or the citizenry in general. As a mode of constitutional interpretation, however, original intent suggests that the true meaning of these provisions was in some sense fixed at the point of their adoption and that later interpreters of the Constitution should adhere to that original meaning.

The earliest version of original intent can be traced as far back as the 1790s, when JAMES MADISON sought to develop a mode of interpretation that could counter the loose canon of Hamiltonian construction. More recently, the call for a return to a "jurisprudence of original intent" held a central place in the campaign by the administration of RONALD REAGAN to challenge controversial decisions taken by the Supreme Court under Chief Justices EARL WARREN and WARREN E. BURGER. In many areas of constitutional law, conservatives argued, the Court had freely ignored the original meaning of particular provisions of the Constitution in order to impose its own values on society. In so doing, conservatives further alleged, the Court had also usurped powers the Constitution vested in the political branches of government, thereby violating its original meaning in a second and more fundamental sense.

Yet the appeal of the theory of original intent has never been confined to conservatives alone. On many issues, liberals can invoke the authority of the Framers and ratifiers of the Constitution just as easily. In recent controversies over the conduct of FOREIGN AFFAIRS, for example, liberals have effectively argued that the Framers and ratifiers of the Constitution did not expect the executive to have unilateral initiative in making foreign policy or the power to commit American forces to combat without the active approval of Congress. Judged pragmatically, the theory of original intent is neither inherently conservative nor inherently

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liberal. It is, instead, a style of constitutional argument that particular parties can invoke whenever the available historical evidence promises to support their immediate cause.


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