Analytic Paper: Original Intent
Bashir Safi
Prof. Timothy O'Brien, Liberty University
PLCY 703
November 20, 2021
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Contents
Summary..........................................................................................................................................2
The theory of original intent:...........................................................................................................3
The methods and modes of Constitutional interpretation:...............................................................5
Rule of Constitutional Law and changes in the government...........................................................9
Conclusion:....................................................................................................................................13
Bibliography:.................................................................................................................................14
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The original intent
Summary
The United States Supreme Court established the judicial review doctrine in its 1803
landmark case of Marbury v. Madison,1 first declared an act of Congress unconstitutional. The
Supreme Court also explained the foundation of its power – the judicial review authority – to
review the constitutionality of federal governmental action. Following this case, additional cases
were decided by the court which helped to establish its power to review the constitutionality of
state governmental action. 2 When court finds a challenged governmental action unconstitutional,
it may stop it and rule it invalid. During the process of judicial review, the court using their
discretion must ascertain the meaning of a provision within the Constitution, if its not clear, then
they may interpret it to the particular action that is challenged or under review.
Since the Supreme Court established its judicial review authority in 1803, it has been
exploring “methods” and “modes” for the Constitutional interpretation in its decisions. To
answer the main thesis question that “How has the policy/law landscape of the country changed
philosophically from what was intended, “original intent,” because of amendment, interpretation,
and court decisions?” we need to understand the theory of original intent, and the “methods” and
“modes” of the interpretation. These changes could be as result of court decisions, Congress acts
and interpretations for disputed governmental actions. This paper analyzes the theory of original
intent and the methods of interpretation.
1 Marbury v. Madison, 5 U.S. 137
2 See, e.g., 10 U.S. (6 Cranch) 87, 139 (1810). Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 362 (1816);
Fletcher v. Peck, Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 430 (1821).
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The theory of original intent:
The meanings of many constitutional provisions are uncertain to some degree. Thus,
court often disagree with the application of constitutional and statutory rules by the state or
federal government. As a result of interpretive disagreement, a judge will exercise interpretive
discretion. Many originalists argue that judge’s discretion in the interpretation of laws undermine
the democratic process.3 Originalists believe that judicial discretion is not just an interpretation,
but it creates law for the future cases. Thus, judicial discretion is incompatible with democratic
processes for legislations. They also argue that judges are not elected officials and they have not
place in the creation of laws. Originalists fear judge’s discretion may be adjudicative.
The originalists propose two standards when judges apply an interpretation. First, when
judges interpret uncertain contexts, they should rule the interpretation according to the specific
intention of the legislators.4 With this standard, according to the originalists, it prevents judges
from adjudicative discretion.
The second standard according to the originalists is “completely determinate form” of the
constitution from the date of its enactment. They argue that this standard guarantees that judges
do not follow their moral belief during the exercise of judicial review. Claimed by the
originalists, judges are never authorized to use adjudicative discretion. 5 The originalist presents
a valid question that someone who drafted the law should best understand the meaning of its
words and the objective they use for those words. They refer the “rule makers” as the people who
are legally responsible for drafting the laws. As mentioned above the originalist argue that in
democratic processes the “rule makers” – or the legislative branch – as responsible for making
3 Pannier, Russell F., An Analysis of the Theory of Original Intent. William Mitchell Law Review, Vol. 18, p. 696,
1992.
4 Ibid., 707.
5 Ibid.
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laws should be best people to interpret the laws. According to the originalists, if peoples’ elected
representatives do not make or interpret laws, and unelected judges perform their job, this goes
against the Framers principles, which is the ideal theory of the original intent. This claim was
refuted by Justice Black of the Supreme Court, he asserted that court is empowered to acts as an
executor of a conclusive determination already embedded in the Constitution.6
The methods and modes of Constitutional interpretation:
When exercising the judicial review authority, the court must use some methods and
modes for its interpretation. The following are main methods and mode where justices utilizing
in disputed governmental actions and judicial reviews. This is also known as the Constitutional
Communication Model which manifest an intentional law-making act by the Framers and
Ratifiers, the purpose of which was to coordinate American society to overcome coordination
problems and secure the common good. 7
Textualism: This mode of interpretation focuses on the plain meaning of the legal
document. Textualism emphasizes how the terms in the Constitution were understood by people
at the time when the document was ratified, and in what context those terms appear. Textualists
believe that there was an objective meaning of the text, and they do not go after the original
intent of the Framers or those who ratified the document.
The court frequently rely on the text of the Constitution before going to other methods of
constitutional interpretation. If a fundamental question of constitutional law was not addressed in
the text or to resolve textual ambiguity, the Justices then refer to other modes and methods of
6 Kay, Richard, "Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and
Responses". 226, 1988.
7 Strang, Lee J. Originalism's Promise: A Natural Law Account of the American Constitution. 43, 2019.
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constitutional interpretation. 8 For example, in the case of Trop v. Dulles, majority of the Court
held that the government cannot revoke citizenship from a U.S. citizen as a punishment. 9 The at
this case noted that the phrase ““cruel and unusual punishment” in the Eight Amendment had
been detailed, thus other modes of the Constitutional Interpretation such as moral reasoning and
historical practices were considered, in deciding the case.10
Justices with stricter textualist approach such as Justice Hugo Black, opposed the
argument of using combination of few methods for constitutional interpretation. Justice Black
argued that those interpreting the Constitution should find literal meaning of the text. In support
of his argument, Black contended that the text of the First Amendment, “Congress shall make no
law . . . abridging the freedom of speech, or of the press” absolutely forbids Congress from
enacting any law that would curtail these rights.11 Justice Black’s used his strict textualism
approach in the case of Dennis v. United States12 where court ruled that Congress could
criminalize the conspiracy to advocate the forcible overthrow of the United States government if
it guarantees First Amendment’s freedom of speech.13 Justice Black dissented with the argument
that Court should not have applied a balancing test to uphold the law against First Amendment
challenge.14
8 Lee Epstein & Thomas G. Walker, Constitutional Law for A Changing America: Rights, Liberties, and Justice 25-
26 (8th ed. 2013).
9 356 U.S. 86, 100–04 (1958)
10 Ibid., at 100–03
11 Black, Hugo Lafayette, 1886-1971. A Constitutional Faith. New York: Knopf. 45-46, 1968.
12 341 U.S. 494 (1951).
13 Ibid., at 509, 513–17.
14 Ibid., at 580.
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Original meaning: Unlike the textualist approach that solely focuses on the text of the
document, the originalists consider the meaning of the Constitution as understood by the people
at the time of the drafting or ratification. Originalists argue that the public meaning of the text
has not changed over time since the Constitution was ratified but the judges and court should
establish and construct the original meaning of the text.
A prominent constitutional scholar Robert Bork argued that in interpreting the
constitution, the judges should look further to the original intent of the founders who drafted,
proposed, and ratified the document, to determine what those people originally wanted to convey
through the text.15 Original meaning could be found outside the text in the Constitutional
Conventions, debates, and the Papers. In the case of Myers v. United States,16 Chief Justice
William Howard Taft, in a majority opinion held that the President does not need Congress
approval in removing an executive official that perform duties under executive branch.17 In this
case the court looked for the original meaning of the President’s removal power by looking at
English common law, the action of first Congress, the records of the Constitutional Convention,
Chief Justice Taft held that “the debates in the Constitutional Convention indicated an intention
to create a strong Executive.”18
Judicial Precedent: This is the most common practice of the courts to find
Constitutional meaning in the Supreme Court’s prior decisions on similar reviews. Most of the
Justices follow their fellow justices’ judicial decisions in future cases with similar facts. A single
judicial precedent makes a prominent role in the court decision making process. A good example
15 Gregory E. Maggs and Peter J. Smith, Constitutional Law: A Contemporary Approach. 39 (3d ed. 2015).
16 Myers v. United States, 272 U.S. 52, 136 (1926)
17 Ibid., at 176.
18 Ibid., 109.
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is the case of Dickerson v. United States. The court struck down a federal statute that governs
admissibility of the statement by police. Court decided to no overrule its prior decision of 1966
case of Miranda v. Arizona.19 Majority declined to overrule Miranda arguing that it had become a
national culture when police get statement in the interrogations.20 Some argues that judicial
precedent is problematic,21 because when you challenge the precedent you must change the
Constitution with an amendment to struck down the precedent. Such disagreement; as such,
disagreements arguably cause that court lose its authority of judicial precedents.22
Pragmatism: This approach involves the Court weighing the possible consequences of
one interpretation against other interpretation on similar disputes. One decision may carry future
cost to the society and public order, and another would be for the public benefit. Under
pragmatic approach the court might consider a decision which play a construction role in
deciding a question of Constitutional law.
Moral Reasoning: This approach argues that some moral concepts some terms in the text
of the document which requires judges to be aware of them when interpreting the Constitution.
For example, “equal protection” or “due process of law”.
Ethos or national identity: This approach of “national ethos” occasionally distinguishes
the values and character of American national identity in judicial reviews which may affect the
meaning of the Constitution.
19 530 U.S. 428, 431–32 (2000).
20 Ibid., at 443.
21 Raoul Berger, Original Intent and Boris Bittkey, 66 IND. L.J. 723, 747 (1991)
22 Bobbitt, Philip. Constitutional Fate: Theory of The Constitution, 58 (1982).
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Structuralism: This mode of Constitutional interpretation resolves disputes, and define
relationship between the federal and state governments, as well as the relationship between the
government and the people. Structuralism also interpret the Constitution for relationship between
the three branches of the federal government.
Historical Practices: The courts usually use this mode of the Constitutional
interpretation when text provides no clear answer to an issue but there was a similar case with
decided by prior political branches which has long-establish historical practice. There are plenty
cases with no court precedent and unclear constitution text, but a long-established practice was
there for the case with arguably similar facts.
Rule of Constitutional Law and changes in the government
The major issues before the court during the 1930s deeply involved fundamental
principles and rules of constitutional law. At this time the constitutionality of the government
actions and legislative acts concerned the political rights and liberties of the people. Government
actions and legislations were contested before the Court. Social tensions were so tightened on
whether the Marshall’s principle will endure. There was fear that new legislation for social and
economic welfare will be struck down by the Court. When the stock market crashed in 1929,
millions lost their savings and forced into bankruptcy. Foreign trade was cut, and people went
jobless. By1933, the unemployment rate went up to fifteen million. The farmers had suffered
huge loss in their come and they were in dire need of help. This was the situation across the
country when the New Deal was inaugurated.23 The New Deal became an issue at the Court. The
23 J. Lee Rankin, The Supreme Court, the Depression, and the New Deal: 1930–1941, p.41, 1961.
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Court was battleground for the government to pursue economic and social welfare but contested
by others in the Court for challenging civil liberties and rights. 24
At the of the New Deal the Court was packed by Justices with career lawyers. All were
formerly successful government officials and played politics. Some of them were already Judges
before their appointment to the Supreme Court. At this point, the average age of the Supreme
Court Justices was seventy-three years, generally conservatives. Justice Van Devanter was the
oldest on the bench. Almost all Justices on the Court were favoring the basic principles of the
constitutional adjudication which had been formulated by Marshall. Chief Justice Marshall
developed his doctrine of judicial self-restraint that if the legislators say inside the Constitution,
they can perform their duties as they are assigned to it. Their acts are legitimate if they are within
the scope of the Constitution and consist with the letter and spirit of the constitution, are
constitutional,25 but the issue with Marshall’s doctrine of self-restraint, was never meant to limit
Judges by the original understanding of what the Constitution was thought when it was adopted.
There were numerous social changes in the country and the Constitution must grow to be
able to adjust and adopt new social changes and current circumstances. If the laws are not able to
change over time in America, there has been a historical resist to the Constitutional laws if not
changed or adopted to the will of people. Even Chief Justice Marshal also said in his historic
quote that “we should never forget that it is a constitution we are expounding.”26
During the first two years of the New Deal the Court seemed to be allowing the Congress
Acts meant to curtail economic difficulties. In January 1934 case of Home Building and Loan
Association v. Blaisdell,27 the Court, upheld the Minnesota moratorium on mortgage foreclosures
24 Ibid., 42.
25 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819).
26 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819).
27 Home Bldg. & Loan Assn. v. Blaisdell, 290 U.S. 398 (1934).
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was not in violation with the U.S. Constitution. Later that year, the Court in the Nebbia case,28
also upheld New York Price Fixing law, recognizing that State is lawfully in authority for prices
control. The federal government by executive orders and Congress through legislations brought
to many changes in the New Deal era, which most of the were challenged in the Court.
The Panama Refining Co. v. Ryan, also know as the “hot oil”29 case, was first New Deal
legislation that was contested before the Court. A part of the National Industrial Recovery Act-
was declared void by the court. The court reasoned that the Congress appointed delegation was
unconstitutional and its does not have the power to legislate. The administration was shocked by
Court decision. Prior to this, the Congress historically appointed delegations to help in
legislations, and this was a norm since early colonial days. The Administration argued that
without delegating tasks the executive branch will not be able to perform its duties. At this
decision the executive branch believed that the court interferes in the Executive branch authority
vested in the President by the Constitution.
To change the social and economic welfare of the people, the government was expanding
its power through executive and legislative acts during the 1930s. The court in previous case
decided that the Congress appointed delegation for legislation are unconstitutional, but at the
Schechter Poultry case the Supreme Court not only held that unconstitutionality of the act but
ruled that National Industrial Recovery Act was beyond the power of Congress to enact under the
commerce clause, 30because the intrastate transactions involved in the case had only an indirect
effect on interstate commerce and were thus within the domain of state power guaranteed under
28 Nebbia v. New York, 291 U.S. 502 (1934).
29 Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).
30 Howe, Mark DeWolff, and Charles P. Curtis. Lions Under the Throne. (Harvard Law Review, 1947), 119.
12
the Tenth Amendment.31 In addition to these cases struck down by the Court, in 1936, the
Agricultural Adjustment Act contested in the court. This legislation provided equal payments on
certain crops to be produced by the farmers, but the payments were to be collected as a tax from
the processor. The Court held this Act unconstitutional on the grounds that it was not really a tax,
and such regulation power reserved to the states, not the Congress. 32
In the first three years of the New Deal the Court only favored the government in two
cases. The “gold clause”33 and in “Ashwander v. Tennessee Valley Authority”34 the court decided
that government doesn’t violate Constitution.
The Court interferences with the legislative acts and its failure to “self-restraint” nearly
hurt the Court’s reputation at the New Deal era and years leading to the judiciary-congress
clashes in 1930s. In the famous Lochner case35 of maximum hours and minimum wages, the
Supreme Court held the New York statute fixing minimum hours for bakers, unconstitutional as
an interference with the liberty of contract, thus depriving the parties of their liberty without due
process of law under the Fourteenth Amendment. 36 At this case Justice Holmes argued in his
dissents that the Court had no right to impose economic theory on the people. He said this is
State’s responsibility to put forth social and economic policy and legislations. If the legislations
do not violate the Constitution, the Court should not interfere legislation and weather or not it
seemed to be in public interest or not. Justice Holmes in his dissent held that "the word liberty in
the fourteenth Amendment is perverted When it is held to prevent the natural outcome of a
31 Rankin, The Supreme Court, the Depression, and the New Deal, 47.
32 United States v. Butler, 297 U.S. 1 (1936).
33 Norman v. Baltimore & O.R.R., 294 U.S. 240.
34 297 U.S. 288 (1936).
35 Lochner v. New York, 198 U.S. 45 (1905).
36 Rankin, The Supreme Court, the Depression, and the New Deal, 51.
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dominant opinion, unless it can be said that a rational and fair man necessarily would admit that
the statute proposed would infringe fundamental principles as they have been understood by the
traditions of our people and our law.”37
Conclusion:
The law, policy and the entire society of the country has changed from the day it founded
through Amendments, legislation, and court ruling. The Supreme Court has acted as judicial
review authority to resolve Constitutional disputes and to protect the rights of federal
government, state governments and even federal branches. At some points such as New Deal in
1930 the Supreme Court was tougher on the federal government to guarantee that the executive
or the legislative branch did not violate the Constitution, and they do not bypass the rights
reserved to the states. At other instances the Court, was ease on the government actions
considering broader social changes and public benefits of the actions. Furthermore, the Court
always looked for the Constitutional interpretation in various modes and method, and sometimes
it used a combination of methods to interpret the document or a disputed legislation. Since the
early days of republic, the Court interpret the document with its popular methods such as
textualist approach, original meaning, judicial precedent, and moral reasoning to serve social
benefit and maintain the originality of the Constitution. Finally, in general discourse and in the
court, the specific words of the text of the Constitution play at most small role compared to the
evolving understanding of what Constitutional interpretation requires. 38
Bibliography:
Black, Hugo Lafayette, 1886-1971. A Constitutional Faith. New York: Knopf. 1968
37 Ibid., 76. (Holmes, J., dissenting).
38 Strauss, David A. “Common Law Constitutional Interpretation, 877 (1996).
14
Bobbitt, Philip. Constitutional Fate: Theory of The Constitution. (1982).
Gregory E. Maggs and Peter J. Smith, Constitutional Law: A Contemporary Approach. (3d ed.
2015)
Howe, Mark DeWolff, and Charles P. Curtis. Lions Under the Throne. Vol. 60 Harvard Law
Review Association, 1947.
J. Lee Rankin, The Supreme Court, the Depression, and the New Deal: 1930–1941, 40 Neb. L.
Rev. 35 (1961)
Pannier, Russell. "An Analysis of the Theory of Original Intent," William Mitchell Law Review:
Vol. 18: Issue. 3, Article 15. 1992
Strauss, David A. “Common Law Constitutional Interpretation.” The University of Chicago Law
Review 63, no. 3 (1996): 877–935.
Strang, Lee J. Originalism's Promise: A Natural Law Account of the American Constitution.
Cambridge: Cambridge University Press, 2019.
