As we plunge into the confirmation process for at least one Supreme Court justice, there will be much talk about the intent of

Original Intent(s)

By Crispin Sartwell

As we plunge into the confirmation process for at least one Supreme Court justice, there will be much talk about the intent of the framers of the Constitution.

The general relation of meaning to intention is an extremely complex matter. It's not true that my words mean whatever I intend them to mean; if I contract to pay you $100, it's no good my urging that I meant by "100" what most people mean by "50." "100" has a publicly fixed meaning, whatever I may intend. On the other hand, especially in cases wherein meanings are ambiguous, what I intended is often relevant: perhaps I was in Toronto at the time and actually did mean to pay you 100 Canadian dollars.

Fixing the meaning of the Constitution by the intent of the people who made it is inevitable to some extent. But it is hardly a simple matter.

Documents such as the Federalist Papers - in which Madison, Hamilton, and Jay urged the ratification of the Constitution they had just helped draft - are not mere statements of intent: they are advocacy journalism. They do not merely seek to elucidate but to persuade. Not to impugn any particular passage, but the goal of persuasion could in many cases actually suggest that the intent be disguised or obscured. The Federalist Papers are appeals to the beliefs or even prejudices of the readers as much as statements of the beliefs of the authors.

Furthermore, it is obvious that the framers had various disagreements as they interpreted their own texts. Hamilton - ultimately an enthusiast for constitutional monarchy - argues in Federalist 23 for an unlimited power of the federal government to make war and to exercise whatever subordinate powers are necessary to accomplish its military ends.

Now you may agree that this is a good idea, and certainly the Bush administration has used it to justify detentions without charge, trial, or end and various other measures that appear to contravene the plain text of the Constitution. But it can hardly be securely asserted to have been the unanimous intent of the framers. Madison himself is much more circumspect in his enthusiasm for executive power.

Even if we were simply to agree that the Constitution meant whatever Alexander Hamilton thought it meant at a certain moment in 1786, there would be profound difficulties For example, people have intentions at varying levels of generality.

Take the case of gay marriage. Hamilton probably could not have even formed the intent to recognize gay marriages legally That is, as the opponents of gay marriage urge, to say that people of the same gender can be married is to change the meaning of the term. For a court to alter the meaning of the term "marriage" to something previous generations could not have meant is "judicial activism."

On the other hand, all the important framers - in particular, Hamilton - were committed to the "classical liberalism" of John Locke and others, a doctrine which can be stated with pristine simplicity and generality: the purpose of government is to secure the greatest possible liberty for each individual, compatible with equal liberty for all. This position is the animating, the fundamental principle of the Declaration of Independence, of the Constitution, and of the Federalist Papers. Alexander Hamilton intended to achieve whatever that principle entails. Indeed, the rest of his intentions were subordinate to that one.

That's why, for example, the "intent of the framers" is not necessarily incompatible with the abolition of slavery, women's suffrage, or the desegregation of schools, though various framers did not directly intend such results.

Legalizing gay marriage extends a legal right that some people enjoy to other people and does absolutely nothing to limit the rights of anyone. It is strictly entailed by the most basic intention of the framers.

"The intent of the framers" - which we should indeed recognize as a key element in constitutional interpretation - simply does not provide the bludgeon that some right-wing politicians and legal scholars think it does. And specifically, when they use it to justify an unequal distribution of basic rights, they have betrayed the most basic intentions with which the American republic was constituted.