Original Intent

The Constitution, asserted Chief Justice Roger B. Taney (1777–1864) in Scott v. Sandford (1857), the infamous Dred Scott case holding that slaves were property, “speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers.” Speaking to the American Bar Association 128 years later, Attorney General Edwin Meese III similarly called for the courts to return to a “jurisprudence of original intent.”

The notion that court decisions interpreting the Constitution should be based solely on the original intent of the delegates to the Constitutional Convention of 1787 (see Framers of the Constitution) has become a litmus test for conservative and liberal legal philosophies. Reverence for a timeless and eternal prescription for the structure of government and the rights of citizens has some appeal. Under this scenario, when new questions arise regarding the interpretation of the Constitution, the decision maker simply looks back into history and determines what was intended at the moment the document's words were committed to paper. Of course, disputes may arise over whether the intent was that of the original drafters, the body that adopted the language, or the bodies that ratified it.

Yet to ignore the fact that the nation and the world have changed over two centuries is somewhat akin to the proverbial ostrich sticking its head in the sand. Undoubtedly it is a greater intellectual challenge to continually reinterpret not just the words but also the meaning of the Constitution in every new case. As Justice Oliver Wendell Holmes Jr. reminded us in Missouri v. Holland (1920): “[W]hen we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.”

The absolutist concept of original intent has not been relied on to any great extent by the Supreme Court, although some of the more conservative members of the Rehnquist Court have often used historical analysis to bolster their opinions. In fact, in perhaps the most important case of the second half of the twentieth [Page p346]century, Brown v. Board of Education of Topeka (1954), the Court in overturning the legal basis for segregation of black and white students in public schools said that history was “inconclusive” on the question of whether the authors of the Fourteenth Amendment (1868) intended it to allow racially segregated schools. The increased importance of public education in modern society nonetheless required that the Court's decision be made in a new context.

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