Framers Intent: the Illegitimate Uses of History

Publication year1984
CitationVol. 8 No. 02


Framers Intent: The Illegitimate Uses of History

Pierre Schlag(fn*)

I. Introduction

The number of law review articles devoted to state constitutional law seems to have increased noticeably since the early 1970s. In most cases, the authors of these articles either plead for the invigoration of state constitutional rights or set forth their understanding of how these venerable, yet obscure documents are to be activated.(fn1) While the call to invigorate state constitutions is growing louder and more frequent, the method is uncertain.(fn2) One of the most significant difficulties in giving life to state constitutions lies in ascribing specific content to constitutional provisions that are as abstract as they are grand.(fn3) One source for the interpretation of constitutional provisions is likely to be the "framers intent."(fn4) The reasons for this are several.

First, the act of imbuing grand constitutional provisions with specific content is an enterprise stalked by the spectre of arbitrariness.(fn5) Reference to the framers intent seems an attractive option because it gives the appearance of reducing the arbitrariness of the interpretive act both substantively and methodologically. On the plane of method, framers intent seems to prescribe a fixed procedure for determining the meaning of constitutional provisions-one that is susceptible to independent verification.(fn6) The search for the framers intent also seems to place substantive limits on the interpretation of constitutional provisions.(fn7) The scope and content of substantive interpretations are limited by the available evidence of framers intent: there is a fixed quantum of data to examine and the interpretive act is restricted to the understanding of that limited portion of historical data.

A related explanation for the attractiveness of inquiries into framers intent is the political and psychological comfort that this method of interpretation bestows upon the judiciary.(fn8) Insofar as this "intentionalist" mode of interpretation is seen as a way of giving effect to the decisions of the framers (a group of people who cannot respond), reliance on framers intent appears to reprieve judges, practitioners, and legal scholars from responsibility for the moral and political character of their actions. Recourse to framers intent seems to insulate these actors from criticism by transforming them into mere conduits for decisions made by others.(fn9)

A third explanation for the appeal of intentionalist analysis lies in the fact that this type of interpretation corresponds well with the dominant positivist legal philosophy that has been the wellspring for the legal education many contemporary jurists have received.(fn10) Similarly, interpretation of the framers intent fits neatly with social contract theory, which remains one of the major political justifications for American liberal constitutionalism.(fn11)

In this Article, I will present a series of attacks on inten-tionalism. My efforts are aimed at eroding the high ground that the intentionalist position appears to enjoy in the interpretation of state and federal constitutions. Currently, one almost has to justify departure from the framers intent in advancing a nonconforming constitutional interpretation.(fn12) This Article is an attempt to reverse this assumed burden of persuasion.(fn13)

I am interested in addressing generally the theoretical foundations for intentionalism.(fn14) Thus, my attacks on intentionalism are applicable to the interpretation of the federal Constitution as well as to state constitutions, such as that of Washington State. Apart from examples referring specifically to the federal Constitution or to the Washington Constitution, references to the constitution and to constitutional law are meant in this generic sense.

At the outset, I must caution that examination, or in my view construction, of the framers intent is neither irrelevant nor necessarily illegitimate for purposes of constitutional interpretation. Inquiry into the sources and origins of the constitution is appropriate to the extent that the process of examining those sources and origins yields a possible meaning for constitutional provisions-a meaning that we would not otherwise have imagined. Second, the process of reacquainting ourselves with our past is likely to yield an enhanced political self-understanding. Of course, the examination and retrieval of other cultural and historical artifacts (such as French literature, Roman law, or German social theory) might serve those two functions equally well. Indeed, thus far the only role I have allotted to the quest for the original understanding is an educational one. In terms of constitutional interpretation itself, I think that reference to the framers intent can have only one legitimate role: it can serve to situate a constitutional decision. A picture of the original understanding can serve as the context against which a constitutional decision that follows or repudiates that understanding can be understood or justified. Again, one might note that French literature, Roman law, and German social theory might perform this function equally well.

What I fervently oppose is according any legitimating weight to the framers intent. Reference to the framers intent does not and should not be taken to justify any constitutional decision. The only legitimate role for the framers intent in constructing a constitutional decision is that of providing contextual meaning. The framers intent can merely serve as a stage set, a background against which the constitutional decision sets off its meaning. My attack on intentionalism is thus aimed at those theories of constitutional interpretation that claim that the framers intent has binding authority, an a priori claim of legitimacy, or even "presumptive validity."(fn15)

Many judges and scholars take framers intent as a given in our constitutional jurisprudence-the fixed point from which constitutional interpretation must proceed. One has to linger long in the dark to find the justifications for this constitutional blind.(fn16)

One justification for intentionalism is the notion that framers intent is a check (or some would argue, the only check) on the exercise of judicial power. Under this view, recourse to framers intent is justified by virtue of the fact that it prevents judicial legislation or precludes judicial subjectivity.(fn17)

A second justification relies upon contract imagery to justify recourse to the framers intent. In one version, we have the claim that the constitution is a written document and that since the document is law, it is to be interpreted in the same manner as other legal documents. As with contracts, if the words are plain and clear on their face, they are to be given effect. If they are not, then one must seek out the parties' intent.(fn18) Closely tied to this analogy is the social contract mythology: the constitution is a social compact that derives its legitimacy from the consent of the governed. Recourse to framers intent is mandated in order that one may distinguish that which the governed have consented to from that which they have not.(fn19)

A third justification for intentionalism can be teased out of the teachings of legal positivism. This school of jurisprudence lends intellectual status to the otherwise unappealing assertion that the framers intent is quite simply a given of our legal system. From the positivist perspective, departure from the inten-tionalist tradition is nothing but extra-legal adventurism. Debates about the wisdom of abandoning the framers intent, according to this school, are matters for political dispute, or perhaps for philosophical inquiry, but not the stuff of which law or legal decisions are made.(fn20)

II. Constraining Judicial Review

The paradox of judicial review has loomed large in the pages of the law reviews.(fn21) Most simply stated, the problem is one of identifying the constraints that can serve to define the legitimate role of the judicial branch when it enforces constitutional provisions.(fn22) Recently, on the federal plane, the problem has most often been cast as one pertaining to the so-called counter-majoritarian difficulty: what grounds suffice to authorize the judicial branch to invalidate the actions of democratically elected and therefore politically accountable officials?(fn23) On the federal level, the problem is seen as particularly poignant given the fact that Supreme Court justices are appointed for life and hence seem to be less accountable to the electorate than is the legislature or even the executive branch.(fn24) In the context of the Washington State Constitution, this problem is perhaps less pressing because the state judges are elected by the people for limited terms, and the people retain the ability, at least in theory, to throw the rascals out.(fn25) Nevertheless, even in these mitigating circumstances, the problem of judicial review remains perplexing, for it is assumed that the judiciary's authority in constitutional cases is limited to enforcing the state constitution. A series of oppositions to the appropriate judicial role is then offered to delimit judicial authority. Thus, it is said that judges deciding constitutional cases cannot and should not: (1) legislate;(fn26) (2) enforce their own subjective value...

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