Search for `original intent' leads to constitutional confusion

The Roberts Nomination

July 21, 2005|By Tim Baker and Emily Baker

`ORIGINAL INTENT" and "Originalism." You'll hear these terms often this summer as the Senate considers Judge John G. Roberts Jr., President Bush's nominee to take Justice Sandra Day O'Connor's seat on the Supreme Court.

They are shorthand for related theories of constitutional interpretation. Both would restrict the courts to the original meaning of a constitutional provision. "Original intent" requires judges to ascertain the meaning that the framers had in mind. "Originalism" (or "textualism," as it is sometimes called) eschews any attempt to ascertain the framers' subjective states of mind and focuses instead on the text itself, giving it the objective meaning that reasonable people would commonly have understood at the time of its ratification.

Both theories would prevent the courts from expanding constitutional guarantees beyond their original scope. Their shared premise is that constitutional decisions made by unelected and life-tenured judges are inherently undemocratic, contradicting the basic principle of government by the people. Therefore, judges should be restricted to the meaning upon which the people originally agreed when they democratically adopted a provision.

But what was the "original" meaning? If, as expected, Judge Roberts is an originalist, he will join Justice Antonin Scalia and turn to history, demanding that courts sing from that hymnal. But the voices of the past often sang from different pages.

History's polyphony was heard last month when the Supreme Court decided two cases dealing with the public display of the Ten Commandments on state government property. Did the displays violate the establishment clause of the First Amendment ("Congress shall make no law respecting an establishment of religion)"?

The court upheld one display and struck down the other. The two 5-4 decisions produced 10 opinions - each firing salvos about what the framers said and did. All had plenty of ammunition, for our nation's founders were ambivalent about religion in general and Christianity in particular. Many of them were deists, and a few were atheists. In their public and private writings and actions, they contradicted each other and often themselves.

George Washington studiously avoided any religious observance on his death bed, but when he issued the first Thanksgiving proclamation, he expressed gratitude to "that great and glorious Being who is the beneficent author of all the good that is, that was, or that will be." President Thomas Jefferson refused to issue Thanksgiving proclamations because he believed that they violated the Constitution. But in his second inaugural address, he invoked the blessings of "that Being in whose hands we are, who led our fathers, as Israel of old."

Jefferson also penned the admonition that the Constitution erected "a wall of separation between church and state." That idea has dominated establishment clause adjudication, but other founders had other ideas. Some believed that the United States was a "Christian" nation and that the establishment clause only meant that the government could not favor one Christian denomination over another.

In fact, history simply doesn't answer the most difficult issues of constitutional interpretation. We cannot even find certainty by looking at what the framers did as legislators. You might think that we could see what they thought was constitutionally permissible by examining the statutes they enacted. But they sometimes passed laws that violated the provisions that they had written into our Constitution.

In 1789, Congress proposed the First Amendment and sent it to the states for ratification. "Congress shall make no law ... abridging the freedom of speech, or of the press."

A few years later, Congress enacted the Alien and Sedition Acts - statutes that made it a criminal offense to criticize the president, Congress or the government. President John Adams' Federalist administration viciously enforced these prohibitions against its Jeffersonian political opponents, imprisoning hundreds of critical newspaper editors. No respectable scholar would now defend the constitutionality of these infamous statutes.

The truth is, our Founding Fathers enshrined in our Constitution principles whose meaning was more profound than they sometimes realized. The Congress that proposed the Fourteenth Amendment's equal protection clause adopted it before galleries that were, by law, racially segregated. And the most famous words in our Declaration of Independence - "all men are created equal" - were proclaimed by men who owned slaves.

Tim Baker, who clerked for Supreme Court Chief Justice Warren E. Burger, was the U.S. attorney for Maryland from 1978 to 1981. Emily Baker, his daughter, studies constitutional law at the University of Maryland, Baltimore County.

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