History and Constitutional Debate

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    I had an argument with a friend in a bar tonight which I thought was interesting. He insisted that history has no place in interpreting the constitution because there is no way to ‘prove’ how it was actually understood at the time it was ratified. He claims that courts should instead use empirical evidence to evaluate the costs and benefits to society of one decision vs. another and rely on something he referred to as the societal ‘consensus’ of what the constitution means.

    My response was that we actually know a great deal about how the constitution was interpreted at the time of its ratification because we have the transcripts of the debates that were had at the state ratifying conventions, etc…

    He continued on insisting that there was still no way to know for sure what was actually meant because we can’t ask the people for clarification.

    Our discussion was interrupted at about that point but I thought I’d bring it up here since there are so many people who are more learned on these subjects than I am. What is the correct role of history in interpreting the constitution and what do you suppose is the best argument against my friend’s position?


    Well we do know a decent amount. Like you said, we have the debates, we have the Federalist Papers written by the people involved in writing the Constitution to explain what they had written, we have correspondence between the writers of the Constitution and between the writers and concerned citizens and on it goes.

    There are multiple problems with using precedence to determine meaning. Every precedence will be stretched in order to allow for something new. Every time precedence is cited it will divert farther and farther from original intent.

    Furthermore, if we look at “societal consensus” to define the Constitution, then what exactly is the point of having a constitution? How do we determine what consensus is? After all I have never heard of a vote on the meaning of the constitution. It seems that the people that are always calling for something like “societal consensus” or that the constitution is “living” are also the ones who want to speak for the rest of society as to what the new meaning should be.

    The constitution was designed with the ability to change through the amendment process. If the public believes that government should have a new power, then the public can grant that new power through an amendment.

    But besides all that, the constitution was meant to restrict government and to grant certain specific powers. Thus, when in doubt whether the government has power _______ the answer is more than likely that it does not.


    That’s pretty much what I was trying to get across to my friend although I liked the way you phrased some of those points.

    Another thing I’ve been mulling over is the sheer absurdity of ignoring historical context when trying to interpret a text or legal document of any sort. Perhaps I should ask my friend if history is irrelevant in interpreting Shakespeare. lol


    The only reason for asking for not making an interpretation in accordance with the historical intent is, off course, that it makes the constitution more or less meaningless. The purpose of the american constitution was off course to restrict what the elected officials may or may not decide upon to do. If you say that whatever majority presently occupying the seats of the house of representatives and the senate may interpret it however the wish its a useless document. That it doesn’t serve its historical purpose and allows the elected representatives make whatever laws they see fit.

    However, the US constitution is not without fault, because it is a document created by mortal men. But, as stated earlier, it allows for making ammendments. The problem with this is that if to many ammendments are made and the ammendments come into conflict with the original intet of the constitution it has become nothing more than a paper tiger. This is a very serious problem.

    Islam is a religionen claiming to be Gods final will and purpose for humanity. This sacred scripture contains within it certain rules. You have the same debate within this religious community of Islam about the interpretation of the rules you find within the quran. Progressives say that, for example, the practise of having multiple wifes must be seen in its historical context and should be abandoned by modern practisioners of the religion. On the other hand you have orthodox schoolars claiming that the Quran is the final word of God and therfore its rules applies for all eternity, hence a man may have four wifes at once.

    This conflict between the need to sometimes reform a sacred text, whether it is a document such as the US constitution or a religious sacred text, is not easily dealt with. If you truly belives in progressivism whatever people right now think is right should be followed. On the other hand if you go for historical intent or everlasting divine rules, you also get stuck in a way with rules that are, to most, completly moronic. The US constituion can be ammended. But still, I think most libertarians and alot of conservatives have a mind-set involving a belief that the constitution contains at least a few principle and rights that are of an everlasting nature and should never be abondoned whatever the majority hold to be true at any given moment.

    It is a very difficult question how to deal with this fact…


    One of the problems is the common phrase “original intent,” which allows people like your progressive friend to say “we cannot know intent.” (OtoH, his standard – “evaluate cost and benefits” has its own problems – costs to whom and measured by what standard, and benefits to whom and measured by what standard? – Essentially it’s an argument for unlimited government, unlimited discretion in the hands of judges; de-legitimizing the very constitution from which these judges/officials ostensibly get their authority. Without the constitution, they’re just a bunch of tyrants whose authority is backed only by naked might. Which, at least to many people here, would at least be revealingly candid).

    I don’t think your friend would hold the same standard for speech/expression (“lets evaluate the costs and benefits – by some arbitrary standard – and forbid speech where the cost is determined to potentially outweigh the benefits) (potential is the only way to measure such things prospectively).

    Note also that in the long history of government evaluations of what the costs are and what the benefits are of any measure or policy, their record of accuracy is. . .poor.

    (ending this post because I meandered).


    (starting a separate post for clarity).

    Where was I? Oh, yes: one of the problems is the common phrase “original intent,” which allows people to say “we cannot know intent.” Which is true, under some definitions of “intent” (was, for example, Hamilton sincere in some of the arguments he made before the Constitution was ratified? Or was his real intent something closer to the arguments he made about what Federal powers were after it was ratified?)

    The real standard is original meaning – the meaning of the terms and phrases, as understood at the time, and as inscribed in the written records/documents at the time of ratification. These are not nearly as “unclear” or “vague” as Progressives like to say (the reason they argue that is precisely so that they can substitute their own instead, at their discretion, and with a “standard” that changes with as demanded by their instrumental utility).

    original meaning is the only way to interpret the constitution; the other, bogus, standard renders it a dead letter (aka “living document” – “living’ simply means “meaningless and dead by any serious measure.”)

    Of course, it actually is. Your actual Constitution is Footnote 4. But reminding them of the discrepancy is useful; it may tug at their conscience (if they have one) or persuade the average open-minded person that the current USG is not worthy of their respect or support, as it is an illegitimate usurpation.


    A long list of Founding Fathers said that the Constitution was to be read according to the original understanding — the reading that the people gave it when they agreed to live under it. They said this in different ways, my favorite being James Madison’s statement that the meaning of the Constitution was to be found in the ratification conventions.

    If we are to have a government by the consent of the governed, the government must be the one to which the people consented. If it is impossible to have such a government, the solution is not to say, “So the judges can do whatever they want,” but to say, “So the British were right: the legislature is sovereign.” Most people who say that constitutional meaning cannot be identified intend by saying that to pave the way for free-wheeling policy-making by judges, which seems to me to be a grand non sequitur — besides a sort of coup de regime.

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