“It seems to me you are twisting yourself into a pretzel trying to deny the relevance of original intent altogether. Sigh...”
Not at all. But it would be original intent of the states, not the drafters. The states vote. The drafters do not.
And the ‘intent’ cannot replace the ‘words’. No contract becomes void just because one party says, “I didn’t want it to mean that!” If the intent was for ‘some’, but they wrote ‘all’, then ALL is what the courts would have to deal with.
Otherwise the courts could rule that the Founders intended privacy to be a right, and that privacy would allow someone to travel on public roads to a public medical center and get a private abortion...
Also, since I am bored:
See, e.g., Bork, The Tempting of America, p. 144 (”If someone found a letter from George Washington to Martha telling her that what he meant by the power to lay taxes was not what other people meant, that would not change our reading of the Constitution in the slightest.... Law is a public act. Secret reservations or intentions count for nothing. All that counts is how the words used in the Constitution would have been understood at the time.”); Scalia, Speech at CUA, 14 October 1996 (”You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words.”)
http://en.wikipedia.org/wiki/Original_intent
“You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because I am first of all a textualist, and secondly an original- ist. If you are a textualist, you don’t care about the intent, and I don’t care if the Framers of the U.S. Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.
I do the same with statutes, by the way, which is why I don’t use legislative history. The words are the law. I think that’s what is meant by a government of laws, not of men. We are bound not by the intent of our legislators, but by the laws which they enacted, laws which are set forth in words, of course.” - Scalia
http://www.proconservative.net/PCVol5Is225ScaliaTheoryConstlInterpretation.shtml
Bork’s quote in context here:
http://books.google.com/books?id=jWbkvFhJStoC&pg=PA144#v=onepage&q&f=false
(1) The States didn't write the Fourteenth Amendment — Congress did. (And it seems that Congress' view of citizenship differs little [if at all] from the view of the Framers.) Then the States ratified it as written.
(2) Surely you have heard of the Supremacy Clause — Article VI.
Who knows? You may get to test your legal theory some day.
Thank you so much for writing!
I’ve long thought that one of the basic lessons of the syllabus of Conservatism 101 ought to be the difference between originalism, strict constructionism, and “Founders intent”. It’s distressing how many conservatives who really should know better use the three terms interchangeably.
Scalia’s essay/lecture “Common-Law Courts in aCivil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws” should be required reading for conservatives.