Intension and Extension, Part 2

The 'intension' of any idea consists in the qualities or properties that are the substance[1] of the idea. See the first part in this series. For example, the Constitution, Article. I.Section. 1. states that "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Taken in its entirety, the 'substance' of the Section is legislative powers, and what they shall be vested in.

Any 'extension' of an idea is dependent on the 'intension' for its substance. Section 2. states, "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States," and in the substance of that there is no 'extension' of any idea that those elected cannot be women or blacks--nor, for that matter, Catholics or Muslims or "Hindoos", as Thomas Jefferson spelled it.

So for all practical purposes, 'intension' is the same as someone's 'intentions'; it merely has a semantic difference in the way philosophers of law use the word. The intension is necessarily in the words and syntax, if you are a textualist (also called a constructionist, from the 'construction' of the clauses and sentences.)

If you are an originalist, the intension is more likely to be in the meaning of those words and that syntax as they were meant when the text was written. That is called original expected application. If on the other hand you are of the belief that the intension should be based on what reasonable persons living at the time of its adoption would have said was the meaning, that is called original public meaning. The problem between these forms of originalism is that the writers of the Constitution, and those who took part in the debates, wrote extensively both before and after it was written. If you read what they wrote and you abide by what they wrote, you might be adopting original application, or you might be following the original public meaning. Reasonable persons living at the time were very well versed in what their intellectuals had to say. And many of those intellectuals said the intension was in the text, so that textualism and both forms of originalism melt into one when we try to interpret the Constitution.

"Originalism tends to favor a narrower definition of civil liberties than modernism does, so it generally permits more authoritarian laws," states a popular website. Obviously this is wrong, because the entire purpose of the Constitution was the promotion of the 'general Welfare' without infringing upon what all 'reasonable persons at the time' believed was the individual sovereignty of the individual. But it may be a common belief because since the time of at least the New Deal, Americans have been taught by their leaders that our Constitution was meant to guarantee 'positive' rights, that is grants, the creation of what does not exist under natural law; in other words, entitlements, not just of money, but of 'social justice'.

The belief in individual sovereignty was not a 'peculiar conceit' of Thomas Jefferson; rather, it was "the common assumption of the day." Jefferson himself has often been described as a strict constructionist, yet his thoughts on the proposed and real extensions of his time are used by originalists of both types, and by textualists.

It is true that individual sovereignty was commonly acknowledged. Sam Adams wrote that he feared misinterpretation of the Constitution would grow the power of the Federal government at the expense of the States and "sink both in despotism." "Those Virginians, such as Patrick Henry and George Mason," wrote Dr. Roger M. Firestone, "who argued most strongly for the Bill of Rights, knew that the individual would require defenses against the authority of the state."

Positive rights are extensions of the Constitution if you interpret it as a 'living document', meant to be read in the context of a modern world. Even then, you must ignore what those who lived during that period knew was the intent of the Framers--because the Framers told them their intent.

The only 'modern' part of the extensions since the New Deal (and some before that) is the loss of individualism in favor of authoritarianism, not the reverse as the quote above states.
 
[1] that by virtue of which a thing has its determinate nature source


© Curtis Edward Clark 2012
 'Like' Curtisedwardclark.com on Facebook