Mariah Andrade
PLCY 703- Contemporary Challenges to Constitutional Order and the Role of the State
2/7/22
There have been many interpretations and views regarding the original intent of the
United States Constitution. “The legal definition of original intent is the actual aim or purpose
especially of the framers of the U.S. Constitution; a conservative theory in constitutional law:
only those guarantees intended by the framers and set forth in the text of the Constitution are
valid”. (Merriam-Webster, n.d.) These interpretations and views have changed throughout time,
court decisions, and amendments. Even though the constitution was written so long ago, it was
written in a way that would be able to sustain for years to come. However, that does not mean
that they have the same meaning. In this paper, I will show how the Constitution was written
regarding original intent, how its intent may have changed to adapt to the changing
circumstances, and how the philosophy has evolved since the establishment of the Constitution.
“At the Founding, the Framers and Ratifiers employed originalism when debating,
drafting, and authorizing the Constitution. They did so against a background of originalist
conventions of legal interpretation. Throughout the nineteenth century and – though subject to
greater criticism and exceptions – up to the New Deal, originalism continued to be the dominant
method of constitutional interpretation.” (Strang, 2019) This means that the Constitution Is
interpreted based on the time that it was created, ratified, and implemented. The usual
interpretation for the reason behind the creation of the Constitution was to “ establish a
republican frame of government that would safeguard the American people from domestic
tyranny, promote respect for individual rights, and avoid encroachments on the autonomy of the
states.” (Golove and Hulsebosch, 2010)
The original interpretation can be seen in early court hearings such as Ogden v. Saunders.
Chief Justice Marshall stated, “To say that the intention of the instrument must prevail; that this
intention must be collected from its words; that its words are to be understood in that sense in
which they are generally used by those for whom the instrument was intended; that its provisions
are neither to be restricted into insignificance nor extended to objects not comprehended in them
nor contemplated by its framers, is to repeat what has already been said.” (Strang, 2019) Even
though some decisions during this time may not have taken a typical originalist approach, most
decisions were made with the originalist interpretation in mind.
In Crisis and Leviathan, Higgs explains how multiple events of national crises shifted the
original traditions of government that continued long after. For example, “one might interpret the
growth of government during the late nineteenth and early twentieth centuries as a reaction, a
development of “countervailing power,” by which the public resisted the higher prices, lower
outputs, and distributional distortions that big business would have entailed under unregulated
conditions.” (Higgs, 2013) The government's expansion can be seen through the creation of The
Federal Trade Commission, the Interstate Commerce Commission, and the Federal
Communications Commission. “In short, according to this interpretation, economic
modernization fostered the growth of private monopoly power, and the government grew more
powerful to hold that pernicious, irresponsible power in check.” ( Higgs, 2013)
While this interpretation is correct, it can not stand alone. Ideologies should also be
present in order to cause the government to expand. During 1893 -1896 there was an economic
depression that put pressure on President Cleveland to provide services such as unemployment
and income tax. These programs went against his classical-liberal ideology. At this time, the
ideology of society was not supportive of expanding the role of the federal government. While
there is no single explanation for the growth of Big Government or Big Business, in the United
States.
Higgs offers multiple reasons that all fall back on the society that is governed. In order
for Big Government to grow, it needs the support of the people aside from the government. With
these supporters, come their ideologies that also drive their political views and actions. President
Cleveland and his supporters stuck to their ideologies that supported” the rule of law, private
property rights, and public peace. The old regime of classical liberalism withstood pressures for
greater federal intervention in the economy.” (Ekirch, n.d.)
During the “Gilded Age'' there was a lot of corruption. The industrial industry was
growing and private capital was influencing society. Industrialization raised the standards of
living for a lot of people, but it came with a price. Businesses were practicing unfair business
exchanges that targeted competition and increased their revenue. The factory workers, who were
mostly new immigrants to the country, were exposed to dangerous working and living
conditions. All this was happening while the corporations and politicians were making a profit.
“Only toward the end of this era, with the passage of the Interstate Commerce Act of 1887, did
the national government begin to break free from a laissez-faire ideology that was antithetical to
state-building in virtually all of its forms.” (Sterling, n.d.)
The consequences of industrialization gave way for the Progressive movement to emerge.
Supporters of the Progressive movement wanted to improve the private industry, establish
safeguards for workers and consumers, and expose corruption within the government and
corporations. The Progressive Era brought about the Federal Reserve, policies to improve
immigration and labor standards and restrict the growth of monopolies. “These included efforts
to outlaw the sale of alcohol; regulate child labor and sweatshops; scientifically manage natural
resources; insure pure and wholesome water and milk; Americanize immigrants or restrict
immigration altogether; and bust or regulate trusts.” (The University of Houston, n.d.) There
were many policies that came out of the Progressive era on the local, state, and federal levels.
The Progressive movement welcomed more interference from the government, as they felt that
the government was the only hope in order to regulate what was happening with big business.
During the Progressive Era, the United States embraced a few constitutional
amendments. The Sixteenth Amendment established income tax which became the main source
of income for the federal government. The Seventeenth Amendment established direct elections
for the Senate. This gave the states the ability to vote who they wanted to represent their
interests. The Nineteenth Amendment constitutionalized women’s suffrage by guaranteeing that
women have equal rights to vote and participate in government.
The Eighteenth Amendment prohibited alcohol. This is definitely a shift from what we
see today. The prohibition of alcohol was enforced to reduce crime, which would have a domino
effect on other issues that stemmed from alcohol. However, this policy did not sustain, and some
argue it caused more harm than good. Could this be considered government overreach or was it
just an attempt to solve a problem? I believe the intention was good.
Even though the involvement of the government increased during the Progressive Era, the United
States economy was still a market system. However, the United States became more involved
due to the war in Europe, World War I. First, it was the regulation of ocean shipping rates and
then the government owning ships. This would allow them to persuade suppliers to sell to them
at decent prices. “Six weeks after the U.S. declaration of war, President Wilson signed into law
the Selective Service Act, thereby saving the government the expense of paying soldiers a market
wage. Government agencies such as the War Industries Board directed what came to be called
“war socialism”: collectivist economic planning on an unprecedented scale.” (Ekrich, n.d.) On
top of the war, the ideology of the United States changed to embrace collectivism and put more
faith in the increased role of government. In my opinion, the way the government stepped in
during the Progressive movement was more of a responsible government than government
overreach.
“The Great Depression hit the United States shortly after World War I. President
Roosevelt relied on the emergency rationale and the wartime analogy to push through a host of
programs during the Hundred Days after he took office in March 1933. This included the
Reconstruction Finance Corporation, the New Deal, the Tennessee Valley Authority, and
agencies regulating agriculture and labor relations.” (Ekrich, n.d.) During this time, the
restrictions on the federal government were starting to wear down. The Supreme Court declined
some legislation, but there were still changes in the Court’s arrangement.
This led to a change in constitutional theory that disabled the protection of private
property. It also led to federal regulation of the economy. While there was a vast change going on
within the government, there was also a shift in ideology. There was no longer a push back of
government intervention regarding the economy when it came to emergencies and the time after.
The New Deal supported the idea that the federal government should step into social and
economic issues.
World War II brought about more policies and the progression of the federal government
in the economy. “Although much of the administrative apparatus of control was quickly
dismantled after the war ended, a host of legacies remained, including the government-financed
plants and equipment; the Employment Act of 1946; the Taft-Hartley Act; the Selective Service
Act of 1948; the GI Bill; a voracious and effective federal income-tax system; and a massive
foreign-aid program. Most importantly, the notion of a “peacetime Constitution” was lost, and
the prevailing ideology moved toward the acceptance of a large role for government in the
economy.” (Ekrich, n.d.) Through each crisis, there were shifts in views and beliefs about how,
and how much, the government should be involved. These shifts helped to mold the United
States’ political economy.
While looking at how the United States shifted throughout each crisis, it circles back to:
“was this the original intent of the Founders when they wrote the Constitution?” I believe that the
ability for the government to evolve as the United States goes through things like a crisis was the
intent of the Constitution. I believe that the Constitution was the foundation and reference that
can be looked at when faced with adversities regarding our government and laws. With that
being said, there may be a difference in interpretation that differs between each person,
circumstance, and belief. However, I do believe that the original intent of the Constitution is still
relevant today. The Constitution is still referenced to safeguard the United States government,
support individual rights and sustain a balance of power, all with the ability to adapt to changing
times.
Ekirch, A. (n.d.). Crisis and leviathan: critical episodes in the growth of American government
(25th Anniversary edition). The Independent Institute. Retrieved February 8, 2022, from
https://www.independent.org/publications/books/summary.asp?id=101
Golove, David M., and Daniel J. Hulsebosch, 2010. "A civilized nation: the early American
Constitution, the law of nations, and the pursuit of international recognition." NYUL Rev.
85: 932.
Higgs, R. (2013). Crisis and Leviathan. [Insert Publisher Location]: Independent Publishers
Group (Chicago Review Press).
“Original Intent Definition & Meaning.” Merriam-Webster. Merriam-Webster, n.d. Accessed
February 5, 2022. https://www.merriam-webster.com/legal/original%20intent.
Strang, Lee J. 2019. “A Brief History of Originalism in American Constitutional Interpretation.”
Chapter. In Originalism's Promise: A Natural Law Account of the American Constitution,
9–42. Cambridge: Cambridge University Press. doi:10.1017/9781108688093.002.
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