UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 10, No. 3SPRING 1987
What Were the "Original Intentions" of The Framers of the Constitution of the United States?(fn**)
Harry V. Jaffa(fn*)
I. Introduction
The following letter to the Editor of Policy Review was published in the spring 1986 issue of that journal:(fn1)
Attorney General Meese, writing in the winter 1986 Policy Review,(fn2) defends a constitutional jurisprudence of "original intent." It is one that, he says, seeks fidelity to the Constitution, and not one that seeks political results from the decisions of the Supreme Court. The judges, he says, should uphold the law and not seek to enact their own personal or political preferences.(fn3)
As the leading exhibit of the evils that result from a departure from these principles, Mr. Meese offers us the following:
In the 1850's, the Supreme Court under
Chief Justice Roger B. Taney read blacks out of the constitution in order to
invalidate Congress' attempt to limit the spread of slavery. The Dred Scott
decision, famously described as a judicial "self-infliction wound," helped
bring on the Civil War. There is a lesson in such history. There is danger in
seeing the Constitution as an empty vessel into which each generation may pour
its passion and prejudice.(fn4)
Unfortunately for Mr. Meese's argument, no one, on or off the Court, has ever expounded the theory of original intent with greater eloquence or conviction than Chief Justice Taney in the case of Dred Scott.(fn5) In considering whether negroes might have standing to sue in United States courts, or whether slave property might be afforded less protection than any other kind of property, the Chief Justice wrote:
No one, we presume, supposes that any
change in public opinion or feeling, in relation to this unfortunate race, in
the civilized nations of Europe or in this country, should induce the court to
give to the words of the Constitution a more liberal construction in their
favor than they were intended to bear when the instrument was framed and
adopted. Such an argument would be altogether inadmissible in any tribunal
called on to interpret it. If any of its provisions are deemed unjust, there is
a mode prescribed in the instrument itself by which it may be amended; but
while it remains unaltered, it must be construed now as it was understood at
the time of its adoption. It is not only the same in words, but the same in
meaning, and delegates the same powers to the Government, and reserves and
secures the same rights and privileges to the citizen; and as long as it
continues to exist in its present form, it speaks not only in the same words
but with the same meaning and intent with which it spoke when it came from the
hands of its framers, and was voted on and adopted by the people of the United
States. Any other rule of construction would abrogate the judicial character of
this court, and make it the mere reflex of the popular opinion or passion of
the day. This court was not created by the Constitution for such
purposes.(fn6) Never has the judicial doctrine of original intent
been stated with greater perspicuity. Never has a judge, in giving judgment
been more clearly committed in his own mind to repudiating the "passion and
prejudice" of his own "generation" than Chief Justice Taney in Dred
Scott.
Taney decided that Dred Scott, as a member of an inferior and degraded race (inferior and degraded, that is, by the law of the Constitution), was not and could not become a citizen of the United States.(fn7) But Taney also decided that under the Constitution, there was no ground upon which Congress could discriminate between slave property and other forms of property. Here is the Chief Justice, speaking again.
It
seems, however, to be supposed, that there is a difference between property in
a slave and other property . . . . And if the Constitution recognizes the right
of property of the master in a slave, and makes no distinction between that
description of property and other property owned by a citizen, no tribunal,
acting under the authority of the United States . . . has a right to draw such
a distinction . . . . [T]he right of property in a slave is distinctly and
expressly affirmed in the Constitution. . . . The right to traffic in it, like
an ordinary article of merchandise and property, was guaranted [sic] . . . in
every State that might desire it, for twenty years. . . . And no word can be
found in the Constitution which gives Congress a greater power over slave
property, or which entitles property of that kind to less protection than
property of any other description.(fn8)
The Chief
Justice was then very far, in his own mind, from attempting to "read blacks out
of the Constitution in order to invalidate Congress' attempt to limit the
spread of slavery."(fn9) It was the attempt of others to read blacks
into the Constitution to which Taney objected. Opinion, he
said, (quite erroneously) had become more "liberal" in the intervening years
since the adoption of the Constitution. But he denied that such "liberal"
opinion ought to govern him as a judge, so long as the words of the
constitution remained unamended. (What sentiment could be more gratifying to
Mr. Meese than that!) And looking at the words of the Constitution what he saw
was that the slave was regarded as "an ordinary article of merchandise."(fn10)
Because of this, the only constitutional power of Congress over slavery in the
Territories was "the power, coupled with the duty, of guarding and protecting
the owner in his rights."(fn11)
Whatever is wrong with this opinion, it is not because the Chief Justice did not hold to the doctrine of original intent. It is not because he thought for a moment that the Constitution was an empty vessel "into which [his own generation [might] pour its passion and prejudice." What he said was exactly the opposite. The Attorney General has a long way to go to make the doctrine of original intent intellectually defensible.
Since the publication of the foregoing letter there has been no response from the Attorney General, or from any one of his staff, explaining how the doctrine of original intent might be defended as the basis for interpreting the Constitution. I am well aware of how little time these busy men have to answer mere pedants. My intention in writing the letter, however, was not to rebuff these adherents of the doctrine of original intent. It was, rather, to demonstrate that subscribing to the doctrine of original intent does not tell us what the original intent was. The Civil War was fought by two sides, both of whom believed (as did Chief Justice Taney in Dred Scott) that they were defending the Constitution of the United States, and that they understood the Constitution as it had been originally intended to be understood.
The deepest political differences in American history have always been differences concerning the meaning of the Constitution, whether as originally intended, or as amended. Since the Civil War, the debate has often taken the form of a dispute over whether or not the Civil War amendments, notably the fourteenth, have changed the way in which the whole Constitution, and not only the amended parts, is read or interpreted. Does not the abolition of slavery and the extension of United States' citizenship to "all persons" born and residing in the United States-of whatever race or color-change the substantive understanding of all the rights that the Constitution functionally or purposefully secures? How could this be otherwise, if in the original Constitution some of those referred to as "persons" were elsewhere considered to be chattels, and some of these same persons were also counted as three-fifths of a person? If legally a person can be three-fifths of a person, does this not mean that "personality" and all constitutional rights to life, liberty, and property have their origin solely in positive law? For surely in nature there cannot be three-fifths of a person, any more than there could be half a child to settle the claims of each of the two women who came before King Solomon.(fn12)
Mr. Meese has attacked the "incorporation" doctrine recently, a doctrine that applies certain of the first ten amendments to the states, no less than to the United States. Whether right or wrong, he took his position on the basis of the alleged intention of the original Constitution without addressing the question of how, or even whether, that Constitution is transformed by the Civil War amendments. It is, however, either naive or disingenuous to think that one can appeal to the "original intentions" of those who framed and those who ratified the Constitution without facing forthrightly the question of what those intentions actually were. It is not possible to even discuss how or whether the Civil War amendments transformed the original Constitution without saying first of all what the original Constitution was.
In fact, the Attorney General appears to be wholly unaware of the fact that the greater part of those who aggressively invoke the doctrine of "original intent" today are self-styled conservatives whose chief intellectual progenitor appears to be-from all the available evidence-not the Father of the Constitution, James Madison or any of his coadjutors, but John C. Calhoun. That is to say, these...
