The American Constitution - The Myth of Original Intention

The American Constituion which has been in effect since 1789 is the world's oldest written Constitution. It is still young and vibrant radiating constitutional hopes for freedom and equality all over the world. It remains the cornerstone of the world's most powerful democracy. Even long after American achievements in technology are forgotten, we can confidently say mankind will continue to enjoy the blessings of the great American constitutional discovery that makes it legally possible to control what John Stuart Mill calls the tyranny of majority. Bernard Schwartz wrote, "The true American contribution to human progress has not been in technology, economics or culture; it has been the development of the notion of law as a check upon power." The American Constitution created an independent judiciary with powers no matter whether conferred or assumed to control the will of the majority solemnly expressed in law. It distributes political power among the three organs of State preventing the concentration of powers and lays down general principles like liberty, equality and due process to ensure just exercising of those political powers. Learned Hand had said, "This is the contribution to political science of which we are proud, and especially of a judiciary of Vestal unapproachability which shall always tend the Sacred Flame of Justice." Gladstone the great British liberal statesman described, "the American Constitution as the most wonderful work struck off at a given time by the brain and purpose of men." In the immortal words of Abraham Lincoln, the American Constitution was conceived in liberty and dedicated to the proposition that all men are created equal. It is based in the belief that all men are created equal and are endowed with certain inalienable rights to life, liberty and pursuit of happiness. According to the highly radical views of Jefferson on Declaration of Independence, the Governments which derive just powers from the governed have no authority to destroy those inalienable rights, and if and when Governments become destructive of those rights the inherent right of the people to alter or abolish such Governments and institute new Governments springs into action. Justice Black who, in many respects, is a worthy intellectual heir of Jefferson recalled with pride in Scales v. United States, (1961) 6 Law ed. 2d782, "Belief in the principle of revolution is deep in our traditions...............The right of revolution has been and is part of our fabric of our institutions." Â The American Constitution has converted these radical political beliefs of English and French enlightenment into legal doctrines into Bill of Rights and created an appropriate independent judicial machinery for their enforcement at the call of the citizen. In the words of Justice Jackson in Board of Education v. Barnette, (1943) 319 US 624, "The very purpose of Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech and free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." They agreed with Acton that power corrupts and absolute power corrupts absolutely. On that premise they built a system of government subject to human rights. Let us declare in memory of all those who wrote such a document that the good work that the founding fathers of the American Constitution did was not interred with their bones but has lived long after them. Let us also rejoice in the thought that the paths of constitutional glory laid by the founding fathers led to the triumph of American democracy and to the protection of human rights. Â In Hurtado v. California, (1884) 110 US 516, Justice Mathews of the American Supreme Court announced, "Arbitrary power, enforcing its edicts to the injury of person and property of its subjects is not law whether manifested as a decree of a personal monarch or of an impersonal multitude." Two years later, the same Judge declared in Yick Wo v. Hopkins, (1886) 118 US 356, "When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power.................But the fundamental rights to life, liberty and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws......... For, the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself." This system of government which some derisively call as government by judiciary (Raoul Burger) is radically different from the political theory of Rechsstaat. It is the first answer of mankind to the problem how to make the State neither too strong for the governed nor too weak for its own purposes. How the governor should be governed is a question the answer to which is not easy to obtain. Rechsstaat provides a partial answer to this problem. But it is deficient in protecting the minorities. If the British Parliament decrees that all blue-eyed babies should be drowned in the waters of Thames, the kind hearted British mother has either to obey such a cruel law or face criminal prosecution because under Rechsstaat there is no appeal to the Higher Law from the British Parliament. It is in addressing itself to this problem and answering it the .American Constitution differs fundamentally from the European Constitutions. It is this aspect of the American Constitution that has struck the European Mind as most novel. Lord Bryce in his American Commonwealth Vol. 1 Page 323, wrote, "No feature of the government of the United States has awakened so much curiosity in the European mind, caused so much discussion, received so much admiration, and been more frequently misunderstood, than the duties assigned to the Supreme Court and the functions which it discharges in guarding the Are of the Constitution." It is John Marshall the greatest American Chief Justice who has firmly established the supremacy of the institution of judicial review. Â In Marbury v. Madison, (1801-02) 2 Law Ed. 60 while avoiding direct confrontation with the opposing forces of Jefferson, Marshall, C.J., the Supreme strategist completely encircled them by a clever pincer movement and firmly established for ever the American doctrine of supremacy of judicial review. He thereby erected in the words of Justice Holmes, "A new body of jurisprudence by which guiding principles are raised above the reach of statute and State and judges are entrusted with solemn and hitherto unheard of authority and duty." (Holmes Collected Legal Papers p. 270). Thereafter it is never in doubt that it is the Constitution that is supreme and the Constitution is what the Judges say it is (Huges as Governor). For this alone Marshall richly deserves the tribute of Justice Cardozo as the greatest intellect in the English-speaking judiciary. Â No matter what the law says and what the Constitution proclaims about human rights the tree of liberty and equality will not flower and flourish in an inhospitable soil of never ending political and social turmoils and under constant conditions of undernourishment of unbroken and unrelieved economic privation and want. It is hardly realistic in the name of rule of law to expect a mother to go without necessary nourishment for herself and for her baby by standing in the long unending queues. Where thousands are aspiring for no more than a Chaprasi post, the true application of principle of equal opportunity of employment may well become impossible. Johnson noted long years ago that poverty makes the practice of many virtues difficult and some impossible. Unburdened by curse of feudalism and blessed by inexhaustible natural resources, the free and liberal social institutions of America have made it possible for the tree of American liberty to grow and flower. Those social and natural conditions made it possible for the armies of American Court decisions handed down by the greatest of liberal Judges like Earl Warren, Douglas, Black and Brennan to fight for human liberty and equality. Â But today these liberal and humane interpretations of the American Constitution are facing stiff opposition from the original intentionists like the present Chief Justice Rehnquist and Bork who argued that the American Constitution should be interpreted not as a 20th Century document but according to the so-called intention of the original framers of that document two hundred years ago. They are more or less arguing that the American Constitution should be interpreted and enforced as the last will and testament of the founding fathers. They refuse to interpret the Constitution and its critical legal phrases as it is understood today by its interpreters. On the other hand, Justice Brennan said in his address to George Town University students in Oct., 1985, "We the current Justices read the Constitution in the only way we can as 20th Century Americans." It is not difficult to see that the present day difference in the constitutional outlook between the original intentionists and the activists is more or less the same as the difference between the outlook of Burke who advocated the doctrine of unchangeability of the Constitution and Thomas Paine the great champion of human rights who proclaimed the right of each generation to alter and understand its Constitution as it see it. Thomas Paine ridiculed the vanity and presumption of the dead to govern beyond their grave and he condemned it as the most ridiculous and insolent of all tyrannies. According to the doctrine of the original intentionists, the courts must hold that the present rights like right to abort were unrecognised by the American Constitution and are, therefore, enforceable by the American Courts. Bork recently argued, "To specify something is simultaneously to give it not only content but by the same process to give it limits." He, therefore, advocates the limits of the rights to be found according to the original intention of the framers. He wrote, "Interpreting the Constitution's general language according to the best understanding of the original intent of the framers is the only way in which the Constitution can be law in the sense just discussed." Similarly Rehnquist argued that because the original founders did not envisage the Constitution to deal with conditions of prisoners, the words life and liberty and due process of the 14th Amendment could not be interpreted as ensuring their human dignity. It is argued that any other interpretation of the Constitution would be undemocratic. It must be accepted that a constitutional document which has been drafted in a horse and buggy age could not have foreseen, however gifted its authors might be, many of the problems that would arise and knock at the doors of our society for resolution. The problem of prisoners like the problem of free intimate human relations may be one such. But if the theory of original interpretationism is applied to the interpretation of the Constitution it can only result in rendering the Constitution in large parts of nation's life totally irrelevant. Further it is also impossible to assert that the founding fathers deliberated on the question and decided against the inclusion of such problems as those of prisoners within the meaning of the amorphous phrases like life, liberty and due process which they have freely used. But so long as there is no textual or contextual prohibition in the language of the Constitution, it is our duty to interpret the document to answer the present-day needs of the society. We all know that the founders intended to deny the rule of the majority over the minorities in areas covered by the inalienable rights of man and that the minorities should be protected in those areas. Â Whether their man embraced woman and whether their guarantees to right to life, liberty and happiness were intended to cover the present-day needs of the society cannot be conclusively answered even by the original intentionist. The suggestion of the original intentionist that the protection of the minorities in those new areas should be received from the majority and not from the Courts would be contrary to the framework of the American Constitution whose basic premise is the protection of the minorities by the Courts in the areas of inalienable rights from the majority. Further the so-called true intention can never be known from the mere text read in isolation from its context. Kelson wrote in his law of United Nations that the Anglo-Saxon concept of true interpretation of a statute is a myth. The meaning of the crucial constitutional phrases cannot be gathered merely from the dictionary without reference to their historical context or purpose. There is no warrant in constitutional law for such mechanical jurisprudence of Justice Robert Owen. Who can say from mere reading of Antony's speech that he had stirred his audience to mutiny and that he committed crime of sedition. The meaning of his words can only be gathered from its context and purpose. The great decisions of Warren Court in Brown v. Board of Education,(1953) 98 Law Ed 873 banning school segregation overruling in Plessy v. Furguson (1896) 41 Law Ed 256 and Boiling v. Sharpe, (1953) 98 Law Ed 884 holding education to be part of liberty could not have been foreseen by the original framers of the Constitution. Â When the Constitution is interpreted according to the doctrine of original intentionism, it would surely fail to answer many a contemporary problems of the American society. American Constitution would be nearly dead then. A dead Constitution and a living nation can never co-exist. It is not a constitutional duty of each succeeding generations to bury the Constitution made by its predecessors or to send it to consign it to Smithsonian. A new Constitution cannot be drafted as frequently and as easily as we can amend Dog's Act. It is an impossible exercise in U.S.A. In the words of John Marshall Chief Justice, the legitimate expectations of the American Constitution is to live and to endure for ages governing and guiding the nation's life. Except by its being interpreted as a document having contemporary relevance the American Constitution will cease to be a living document. It, therefore, becomes an unavoidable compulsion of interpretation to interpret it contemporaneously. Â In this view, there is present no extra element of anti-majoritarionism than what is involved in the well accepted doctrine of judicial review. The interpretater will still have to stick to the Constitution and will have still to speak in the name of the Constitution. All that it means is that so long as the interpreter does not violate the specific constitutional prohibitions and does not interpret the Constitution contrary to those prohibitions, his interpretation cannot be constitutionally found fault with on the ground that such a meaning of the Constitution was not thought of by the founders. On this view extra constitutionalism of Michael J. Perry cannot be counted as constitutionally objectionable. Many of its words used by the Constitution are empty vessels which the interpreter cannot hope to fill with any meaning that has no contemporary relevance. The doctrine of original intentionism defeats the Constitution by inactivism. This is one of the greatest shortcomings of the doctrine of original intentionism. According to the original intentionist (Reynolds v. Sims) (1964) 12 Law Ed 2d 506, one man one vote was wrongly decided because the founders never intended advocating equality clause to be applied against malapportionment of legislatures. For the same reason (Griswold v. Connecticut, 14 Law Ed 2d 510), invalidating a law prohibiting the use of contraceptives even by married couple and Roe v. Wade, (1973) 35 Law Ed 2d 147 deciding against prohibition of abortion should be held to have been wrongly decided The original intentionist would say that the original Constitution did not have any theory of generalised right to privacy and therefore the question whether there is any level of intimate behaviour that cannot be made subject to majority will should be held to be incapable of being answered by the Constitution. (See The Second Editorial of Washington Post dt. Sept. 17, 1987). For similar reasons, all claims of personhood rights would be rejected by him as being beyond the scope of Constitution. Learned Hand has already foreseen the dangers inherent in this original doctrine of original intentionist and had, therefore, admonished him to deduce constitutional meaning from his acquaintance with Acton, and Maitland, with Thucydides, Gibbon, Carlyle, with Homer, Dante and Shakespeare and Milton, with Macchiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume and Kant. The American Constitution in large parts will otherwise remain ununderstandable. But the greatest objection to original intentionism remains in its dangerous potentialities to alter the very basic character of the American polity into a mere rule of law country by making the rule of the majority over the minorities in vast areas of the nation's life that were not thought of by the founders unreviewable by the judiciary. Then the words equality, liberty, due process will no longer be contemporarily relevant for American national life. That would be clearly destroying the American constitutional system which detested most and dreaded greatest the tyranny of the majority.

Author Name: Hon’ble Justice P. A. Choudary