Cooler Heads

Note: additions (made the night of 7-14 prior to reading comments) in brackets.

Many people, some federal judges sadly included, unreflectively throw around the term “Framers’ Intent” as if it is some repository of objective value, a panacea for the caprice of judgment. As the title of this post indicates, that’s a load of shit. I’m going to keep this short and sweet, which means, for better or worse, debate mode. (Note, however, that the following arguments would make for a terrible, tight case.)

First, Framers’ Intent is an inherently flawed concept. It makes no sense to speak of the Framers as one entity with one set of intentions. The Framers were 55 individuals, not some collective mind with a clear and timeless understanding of the Constitution. Each delegate had his own reasons for supporting and opposing provisions of the Constitution – reasons we usually cannot discern. Sure, it’s pretty safe to say that Hamilton had a National Bank in mind when he supported the Elastic Clause, but such examples are few and far between. Our records of the Framers’ debates are incomplete, and even if they were, speeches and voting alone cannot reveal intentions. Perhaps some Framers supported particular provisions as a matter of political bargaining (e.g., vote swapping) or appealing to their local constituencies. Perhaps some Framers’ changed their minds after they gave their speeches. And what about the Framers who didn’t speak on a given issue? Similar examples abound; the point is, by and large, Framers’ intentions were private and variable, and often had more to do with politics than principles. [Therefore, when a judge speaks of Framers' Intent, what he is really referring to is something else, such as an individual Framer's intent, the intent of a group of Framers, or simply his assumptions of what the Framers thought based on historical context, biographies, and the like. It is a myth that Framers' Intent and objectivity go hand in hand.]

Second, an individual Framer’s intent, on the rare occasion that we can reliably speak of it, should carry no special weight. Unless you believe that an appeal to authority is a valid type of argument, why should the fact that a constitutional interpretation came from Hamilton instead of Posner matter? Ideas should be evaluated according to their merits, not their authors. The Framers simply formulated the Constitution, which the people, through state legislatures, ratified. The people consented to a text, not the manifold, contradictory, and ambiguous reasons why a bunch of rich white guys approved of it. If anything, then, it is the ratifiers of the Constitution whose intent should be revered, because it is they who gave the Constitution the force of law. Needless to say, all of the other problems with intentionalist reasoning still make this a bad idea.

Third, judicial deference to Framers’ Intent is contrary to the purpose of Constitution. The Constitution is filled with vague principles that should, via judicial interpretation, reflect evolving technology and values. For example, the firing squad may not have been “cruel and unusual punishment” during a time when painless lethal injection was impossible, but it may be today. Of course, one can respond that the intent of the Framers was, in fact, for judges to interpret constitutional principles in light of contemporary developments, but such a conception of Framers’ Intent renders it an impotent and superfluous middleman. Framers’ Intent, to have any purpose at all, must be restrictive – and therefore, problematic. [Judges' are already constrained by precedent and the language of the constitution. If you are inclined to restrict their judgments further, ask yourself if Framers' Intent doesn't actually open the door for more judgments (as aforementioned) - judgments about opinions that, as much as we honor them, should carry no legal authority.]

It is for these reasons that I am proud to…blog.