Thursday, January 6, 2011

Original Intent

Contributed by Katie Foley, 1.2011

I have spent a lot of (borrowed) money on classes related to Constitutional Law.  When it comes to constitutional interpretation there are two main roads you can travel to arrive at your interpretive destination.  The first road is Living Document Road, upon which travelers believe that the meaning of the Constitution changes over time as society and technology change.  For example, information about contraception was considered obscene prior to the mid-1900's and therefore not subject to Constitutional protection.  But over time society's view about contraception has changed and therefore information about them is no longer viewed as obscene (unless it is offered as part of a comprehensive sex education course).  Living Document Road is traveled most often by liberal constitutional scholars.

The other road is Original Intent Road.  Travelers on this road believe that if a legislative scheme, such as "Obamacare", would not have been in the "founders'" intent in writing the Constitution the government lacks the power to create such a scheme.  Conservatives, most recently and vociferously the Tea Party, are people who prefer to travel on Original Intent Road.  For example, it makes perfect sense to argue against the establishment of a mosque "near" Ground Zero because this was a nation founded by "Christian men" on "Christian principles" and therefore the First Amendment doesn't apply to non-Christians.  (To tell you the truth, I'm not sure I can come up with any way that argument makes sense...)

It seems that lately conservatives have claimed the monopoly on Constitutionality.  Having just ridden into power on the backs of those Constitutional scholars collectively known as the Tea Party, Republican U.S. House leadership chose to read the sacred text out loud at the start of their session.  Apparently it's a very long and boring document.  In fact it would kind of be like reading your cell phone contract out loud because the Constitution is, in fact, a contract of sorts.  There is a great account of the process here:

When the Constitution's final word was uttered (it's "intervened"), only 42 representatives remained.  The rest of them all had to use the bathroom or had gotten really important phone calls.  But of more interest in light of the fact that many of the Republicans arrived in D.C. via Original Intent Road is that the Constitution read aloud was not the original Constitution.  They read the Constitution "as amended", meaning that little things such as the 3/5ths Compromise - the portion of the Constitution that states slaves are only 3/5 of a person for apportionment reasons (Article 1, Section 2, Paragraph 3 ) - was not read.  They also didn't read the 18th Amendment, the Prohibition Amendment, since it was superseded by the passage of the 21st Amendment.

So apparently conservatives believe in Original Intent, unless it's embarrassing.

NEXT DAY NERD NOTE: Today on Midday with Gary Eichten (MPR, 91.1 FM) there was a discussion about the Framers,  They mentioned another original intent that is overlooked in a big way by the right and, since an amended portion of the Constitution, went unread in the House.  Originally, Senators were to be selected by state legislatures, the intent being that the Senate would be a more prestigious body if chosen by a more elite group of citizens.  The reason for this is that our illustrious founders were big time elitists.  It was not until the passage of the 17th Amendment in 1913 that Senators began to be selected by the general electorate.  They founders were progressive elitists, a species Republicans purport to abhor.  The Constitution is every American's document, not just conservative Americans'.  
Link to MPR story and interview:

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