This fall I’m teaching, among other things, Constitutional law, an area I did not study while in grad school for my Ph.D. in political science. However, it has allowed me to reconnect with some of the ideas I turned over in my head 10 years ago in law school, and I was reminded of an interesting discussion I had with several classmates while preparing for tomorrow’s class on the modern Commerce Clause. It has to do with the validity of the jurisprudential theory of original intent.
Some people argue that attempting to identify the “original intent” of a document drafted and ratified by multiple authors is impossible because the different actors involved may have had different intents and it is impossible to determine a way to give priority to one of these intents over another. That’s not the argument I have in mind. The problem I want to raise is that it is quite possible that none of the drafters had a single “intent” at all. The Constitution is a political document produced through negotiation between parties with very different objectives. As anyone who has ever engaged in any negotiation knows, the parties give a little in one area to get more in another area in order to come to some final agreement. As the product of this kind of process, there is no reason to believe that the Constitution is coherent the way that we could expect of a philosophical document produced by a single mind. The horse trading that led to the simultaneous creation of the Commerce Clause, the Necessary and Proper Clause, the Supremacy Clause, and the Tenth Amendment may therefore not have produced any coherent meaning, but only a balance of different arguments that can be drawn upon by judges (and Congress) to use in their best judgment to deal with the “inevitable crises of human affairs” as Justice Marshall put it.
However, if true, then originalism cannot work as a theory of Constitutional interpretation. One can’t find the original meaning of a document if there is no original meaning in it. Recognizing the political nature of the Constitution ought to lead one closer to the legal realism espoused by Dworkin, and away from the strictures original intent.