Two Ways to Read With 'Original Intent'

     Monday I wrote, "There is a world of difference between 'original meaning' and 'original intent'. Until recently I was consciously unaware of the difference, though I kept running into descriptions of Originalism that seemed to contradict each other, and I didn't know why.
     We Originalists think the correct way of reading the Constitution is to ask what the Founders meant. But there are two versions of what they meant. There is the 'literal' reading, whereby "an historical literalist will see the militia [just as an example] of the 2nd Amendment as referring to all able-bodied men from 17 to 45, just as in the late 18th century."[1] 
     But the Militia Act of 1903 designated the National Guard, (Organized Militia), as the nation's primary military reserve. But the 'militia' of men 17-45 was created by the Militia Act of 1792, five years after the creation of the Constitution. In 1787, the 'militia' was the entire body of civilians physically fit for military service and who wanted to volunteer. The Second Militia Act of 1792 (there were two) created the draft. So who and what are the independent militia of today, those people who store weapons and train for the day the U.S. is overrun by enemies, or for the day the Feds become the enemy?
     In 2010 the Supreme Court ruled they were individuals, whose right to bear arms applies to state and local gun control laws. Two years earlier the Court, in the the Heller case, addressed only federal laws. But the rulings only address private ownership in a household; they do not address what particular laws may redress local and State needs for some controls; that issue was sent back to the lower courts to decide.
     Problems with Originalist readings come in several forms: 
     A) do we understand the written document as the Framers understood it--in their terms? For example, the right to bear arms could not have meant an Uzi or an M11 machine gun, if they knew of such things?
     B) Since they did not know of such things, how do we know what they would have said once they were told? Alexander Hamilton said in 1788, four years before the first Militia Act by Congress, that if "circumstances should at any time oblige the government to form an army of any magnitude[,] that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens."[2]  
     Thus, by the words of the strongest Federalist Founder who sought to expand government powers, "the body of citizens" should be only little inferior, if any at all, to the powers of any government army who might then be able to be used against them. But Hamilton could not foresee rocket launchers and surface-to-air and cruise missiles.
     C) And so, if we are not meant to understand the written document as the they understood it in their frame of reference to the specifics of their existence at that time, then we must find in their other writings what they meant in principle.
    Jack M. Balkin[3] argues "that constitutional interpretation requires fidelity to original public meaning but not to original expected application. Original public meaning is what the words used meant to competent speakers of the language in the relevant political community at the time of adoption. Original expected application is how people at the time expected those words would be applied to concrete situations in their world. Original public meaning is a proper object of constitutional fidelity, while original expected application is not. . .
     "For example, the ban on 'cruel and unusual punishments' requires us to decide today how we should apply the original public meanings of the words "cruel and unusual." It does not require us to follow how people in 1791 would have applied the concepts of "cruel and unusual."
     Originalism, then, is not so specifically about how Jefferson or Madison or Patrick Henry would have applied their idea to our modern problems; that is what is called 'original expected application'. 
     Rather, we need to understand the contextual and common meaning of the words the Founders used, and apply those meanings, whether the meanings have changed or not, whether we now use different words or not. We need to understand the intent of what they said, called 'original public meaning', and apply that as the Founders' 'original intent'.

[1] http://www.usconstitution.net/consttop_intr.html

[2] Federalist, No. 29

[3] Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment, Yale Law School



© Curtis Edward Clark 2011
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Original Meaning of Ninth Amendment Is Lost in Modern Jurisprudence

     The Ninth Amendment is the Constitutional description of "individual sovereignty".
     "Those Virginians, such as Patrick Henry and George Mason," wrote Dr. Roger M. Firestone,[1] "who argued most strongly for the Bill of Rights, knew that the individual would require defenses against the authority of the state. [ ] The battle now is not between the Republicans and Democrats, which are merely parties, nor between liberals and conservatives, who dispute over values, but, as it always has been, between liberty and tyranny...[ ] Despite the efforts of some to 'deny or disparage' its meaning, the Ninth Amendment stands, not as a waterblot,* but as a watershed, separating those who would yield to despots...."
     Jefferson wrote[2] about the inseparable and indispensable economic aspect of individual liberty, and how just laws were designed to protect the equal rights of all individuals.
     "Individual sovereignty was not a peculiar conceit of Thomas Jefferson: It was the common assumption of the day...", wrote Joseph J. Ellis.[3]
     As Van Ronk points out,[4] the Ninth Amendment "unequivocally vindicated the political doctrine that there are rights (plural) which exist independently of any written accounting in a political or legal document; and its corollary, that rights ultimately do not derive from written documents but precede and transcend them." 
     "Yet neither the language nor the history of the Ninth Amendment offers any hints as to the nature of the rights it was designed to protect."[5]
     Is it not plain enough that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
     Apparently not. An Originalist interpretation, given the historical background of the Founders who demanded this provision and their reasons for it, 'other' rights retained by the people are all of those not 'enumerated'. It was the Federalists, after all, who pointed out that the federal government was not given the Constitutional power to trample on individual liberties, and for this very reason believed it was dangerous to create a Bill of Rights at all because "an inference would be drawn that the federal government could exercise an implied power to regulate such liberties."[5]

     As Robert F. McDonnell points out,[6] it was "rendered virtually useless by years of encroachment by the federal government and the ever-fading concept of federalism." This would indicate the Federalists, anti-Bill-of-Rights to begin with, were correct about that "implied power". But he makes the counter-point that Jefferson set out carefully the statement about 'self-evident' truths on which our freedoms are based."
     And so it was that Patrick Henry, James Mason, Edmund Randolph and others wanted it known in writing what Jefferson's 'self-evident' truths were based upon: "the primacy of the individual and the knowledge that unchecked governments have a tendency to subvert those rights."[6]
     But Madison made it clear to the Founders that the Amendment states but a rule of construction, [ ] and that it does not contain within itself any guarantee of a right or a proscription of an infringement," because, Madison said, of "last clause of the fourth resolution.''[7]
     And yet Bork's "inkblot" has had little effect in the courts. We will examine why, next time.


[1]  http://www.mastermason.com/rfire/masonry/waterblot.html
[2]  http://www.lexrex.com/enlightened/AmericanIdeal/yardstick/pr6.html
[3]  http://joseph%20j.%20ellis/
[4]  http://www.vanronk.info/2011/02/ninth-amendment-originally-speaking.html
[5]  http://legal-dictionary.thefreedictionary.com/9th+Amendment
[6]  http://static.record-eagle.com/edits/know_your_rights/26ninth.htm 
[7]  http://caselaw.lp.findlaw.com/data/constitution/amendment09/#t2

*Robert Bork called it an "'inkblot' on the Constitution."

© Curtis Edward Clark 2011
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