Sunday, July 10, 2011

"Original Intent" Is a Farce

Whenever a court makes a decision that conservatives like Rick Santorum do not agree with, they have a go to complaint: that an activist judge was going against the original intent of the Constitution! And, of course, as far as conservatives like Rick Santorum are concerned, the original intent of the Constitution is pro-Christian and pro-low taxes.

But what does "original intent" really mean? What was the original intent of the founders?

The title of my post is actually a bit of an overstatement. It's quite clear that the founders as a group did share many concerns and goals. For example, it was clear that the founders all intended for their to be three branches of government, and that the legislature would be bicameral. It was clear that they were concerned about the executive branch gaining too much power. It was clear that they wanted to intend for a national military. It was clear that they wanted it to be an amendable document.

But with the way the Rick Santorums of the world talk about original intent, it's like they think the drafters of the Constitution were this hive mind that all thought with the same mind and spoke with the same mouth about all issues. That simply wasn't true. A basic understanding of Alexander Hamilton and James Madison, the two main representatives of the different viewpoints that led to the Constitutional compromise, highlights this fact. Alexander Hamilton believed in a significantly stronger federal government that James Madison did. By the way, Hamilton represented the viewpoint aligned with George Washington, and his acts as Secretary of the Treasury included instituting a National Bank. Just to give a comparison point, the control a National Bank has over a nation's economic policy makes the Fed's power look miniscule.

Madison, on the other hand, was the representative for the state's rights side, a very important side that ensured the Bill of Rights was included in the Constitution. By the way, the three most historically important founding father followers of this viewpoint (Thomas Jefferson, James Madison and James Monroe) all governed similarly Hamiltonian Federalists during their Presidential terms. Jefferson was actually disappointed enough in his time as President, where he greatly expanded the power of the federal government and the executive branch, that he didn't list being the third President of the United States among his accomplishments on his tombstone.

This isn't to say that there aren't times to call for judicial restraint. For example, it would have been nice if the Conservative 5 now running the Supreme Court (Roberts, Scalia, Alito, Thomas and Kennedy) had shown some restraint in the Citizens United Decision. But our founders couldn't have imagined the challenges of the world we live in, which is why they created very broad, amendable guidelines. Original intent, as many in politics currently use it, is a meaningless statement that they just use to support their positions they don't have actual rationalization for. The media should treat the phrase as such.

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