Civil Discourse Now

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Original intent: don't look to the State conventions

Justice Scalia made “original intent” (what the white male landowners who wrote or who wrote and ratified The Constitution meant) a popular way to construe provisions of The Constitution. Today I want to discuss the state conventions. (I’ll use abbreviations for each State.)

The main Convention was held in Philadelphia from May to September, 1787. Twelve of the 13 States sent delegates to The Convention. RI sent none. Some people believe we should look to the State conventions to determine intent. That is so difficult as to be impossible.

First, The Constitution was ratified when the ninth State (NH, June 21, 1888) voted in favor. Const. Art. VII. One could argue that the actions of the States that ratified afterward (VA, 6/27/88; NY, 7/26/88; NC, 11/21/89; RI, 5/29/90) are not a source of “intent.”

Second, to establish intent, the State conventions had to provide content. None did. The vote was up (for ratification) or down (against). NC held two conventions: the first voted “down.” How can we construe any intent from NC?

Third, since the text of The Constitution was unchanged by the State conventions, records of debates from State conventions might disclose intent. Two States (DE, NJ) left no records. Four left only a few pages (GA, CT, MD, NH).

Six State conventions (PA, MA, SC, VA, NY, NC) left rather extensive records. Reliance on several State conventions’ records would be incomplete. The debates, in part, concerned matters that today should be moot given amendments and changes in our values.

For example, on the ban of religious oaths in Art. VI, cl. 3, during the 1st NC convention, 7/30,88, one delegate stated: “The exclusion of religious tests is by many thought dangerous and impolitic. They suppose that if there be no religious test required, pagans, deists, and Mahometans might obtain offices among us, and that the senators and representatives might all be pagans. Every person employed by the general and state governments is to take an oath to support the former. Some are desirous to know how and by whom they are to swear, since no religious tests are required...”

Some white supremacists might hold these archaic, prejudicial views, but slavery was protected by, and women and indigenous peoples had no rights under, the original Constitution. That is why much of the content of the State convention debates is meaningless today.

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Comment by pogden297 on December 31, 2020 at 12:35pm

The 9 states to ratify the Constitution was a political ploy.  In reality, a unanimous vote was required because the adoption of a second Constitution was technically an amendment of the first one, the Articles of Confederation. A unanimous vote was required by the Articles.

Judicial activists are quick to point out the difficulties of looking at intent when interpreting the Constitution and/or laws.  Then they use that difficulty to throw out the concept it should be a consideration at all.  What would they replace it with? Who knows?  I am still waiting to find that first judicial activist who was willing to articulate an alternative theory of jurisprudence which would guide a judge.  They seem to believe it's perfectly fine to ignore the actual wording of the Constitution/laws, and the possible intent behind it, so unelected judges can enact from the bench whatever policies they want...well as long as they are liberal policies.  Of course, conservative judges can be activists too.   Liberals might want to reconsider their position in the era of conservative dominance of the bench.

My favorite issue for outing judicial activists is the death penalty. Ask them if they think federal judges can find the death penalty to be a violation of the 8th Amendment.  On that issue, there is no question of the intent of the Framers.  Capital punishment is mentioned three times in the Constitution and amendments.  If a person says it's okay for judges to outlaw the death penalty by interpreting the 8th Amendment that way, despite undisputable intent saying that's not what was intended, they're not only an activist, that person simply does not believe in democratic government.


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