Paul Brest: The Intentions of the Adopters Are in the Eyes of the Beholder

Constitutional interpretation proceeds by reading the text of a provision in the light of its general purpose and in the light of precedent (that is, the history of previous interpretations). The text, rather than the adopters' subjective states of mind, is the primary guide to the purpose of a provision. The evolution of doctrine through precedent generates a tradition which Justice John M. Harlan aptly describes as a living thing. The tradition provides stability while also allowing constitutional change.

I will call this the classical approach, because it describes how the Constitution usually has been interpreted during its two-hundred-year history, and also because its focus on text rather than intentions is how the adopters themselves interpreted state statutes and constitutions.

From time to time this approach to the Constitution has come under attack from people who urge so-called strict construction, by which they usually mean focusing on the adopters' specific intentions. We are in such a time again. During the recent past Edwin Meese repeatedly urged this view from his platform as the attorney general of the United States.

Much of the impetus for strict construction has been the hope that it will restrain judicial activism - that strict adherence to the intentions of the adopters can prevent judges from reading theirown views into the Constitution. In fact, strict construction cannot achieve this end. Because it is based on mistaken views of language, intentionality, history, and law itself, it invites - even encourages - interpreters to read their own pre-dispositions into the Constitution. This tendency is exacerbated because strict construction gives relatively little weight to precedent as compared to supposed new insights into the adopters' intentions; it therefore forgoes the moderating forces of tradition. Let me emphasize that none of this occurs because strict constructionists act in bad faith. It occurs because of limitations inherent in the enterprise.

Before going into this at greater length, let me make a collateral point, just to set the matter to rest. People often equate classical construction with an interventionist judicial stance - that is, a readiness to strike down legislation - and strict construction with an approach which gives more deference to legislative decisions. In fact, whether judges are interventionist or deferential has nothing to do with whether they are strict constructionists.

For example, Justice Frankfurter was anything but a strict constructionist. He believed that the due process clause had substantive content; that it incorporated so-called fundamental values. It embodied, in his words, a system of rights based on moral principles so deeply embedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our whole history. But Frankfurter was the quintessential noninterventionist, believing that the Court should only strike down a law which was egregiously inconsistent with these fundamental values. On the other hand, Justice Sutherland often was a strict constructionist: The whole aim of construction, as applied to a provision of the Constitution is ... to ascertain and give effect to the intent of its framers, and the people who adopted it. That was written in dissent of the Blaisdell case, where the majority deferred to the judgment of the Minnesota legislature and upheld a mortgage moratorium during the depression. Sutherland, joined by justices Van Devanter, McReynolds, and Butler, would have struck down the law. These were the so-called four horsemen who did battle against the New Deal. Not infrequently, they rode under the banner of strict construction.

The issue between classical and strict constructionists might be posed this way: On what level of generality should an interpreter try to ascertain and apply the adopters' intentions? Should the interpreter try to learn precisely how the adopters would have applied the provision to the case at hand (what we might call their specific intent - assuming that they had intentions about the case at hand), or should the interpreter focus on their more general purposes?

Let me use as an example the familiar text of the equal protection clause of the Fourteenth Amendment: No state shall deny anyone within its jurisdiction the equal protection of the laws. A strict constructionist would ask: How would the adopters of the Fourteenth Amendment have decided the case at bar, for example, Brown v. Board of Education.

Raoul Berger tries to do just this in his book Government by Judiciary. He uses congressional debates and other sources to conclude that those who adopted the Fourteenth Amendment intended only to provide blacks minimum civil rights, such as holding property, entering into contracts, and the like. They would not have wanted their children to go to school with blacks and did not intend to outlaw segregation. Under Berger's reading, the Court was not faithful to the adopters' intentions when it prohibited school segregation in Brown.

This strict constructionist venture faces some troublesome historiographic problems. Let me outline a few of them.

First, what ultimately matters are the intentions not of the relatively few members of Congress who framed the equal protection clause or the even fewer who publicly talked about their intentions, but rather the intentions of those who adopted the Fourteenth Amendment. What theoretically matters are the commonly held intentions of two-thirds of the members of both houses of Congress and the legislators in three-quarters of the states. It is plausible to describe the general aims of these multitudes of people. But it is obviously impossible to describe their specific intentions. It was partly for this reason that in describing the task of statutory construction, Justice Frankfurter wrote: All these years I have avoided speaking of the legislative intent. ... Legislation has an aim; it seeks to obviate some mischief to supply an inadequacy, to effect a change of policy, to formulate a plan of government. That aim, that policy is not drawn ... out of the air; it is evinced in the language of the statute, as read in the light of other external manfifestations of purpose. That is what the judge must seek and effectuate, and he ought not to be led off the trail by tests that have overtones of subjective design. We are not concerned with anything subjective. We do not delve into the mind of legislators or their draftsmen, or committee members.

Second, is the relevant question,
(a) how would the adopters have applied the equal protection clause to the issue if it had arisin in 1868, or
(b) how would they apply it today?

Either approach requires that we put ourselves in the adopters' heads; imagine how they understood the relevant part of their social, political, or economic world, and then imagine how they intended the clause to affect (or not affect) it.

Answering either question requires going beyond the ordinary task of the historian, for it requires changing the adopters or their world in a speculative, hypothetical way - for their world and worldview are not the same as ours. The problem is easiest to grasp if you think of technological change: for example, how would the adopters of the commerce clause have dealt with the regulation of the interstate transmission of electromagnetic signals? The problem is far more difficult when the changes have been social: Consider, as Chief Justice Warren noted in Brown, the vastly different role of public education in 1868 and in 1954.

None of this means that history is useless in constitutional interpretation. But it does impose significant limits on the level of specificity with which one can discern the adopters' intentions.

Third, if we really care about the adopters' intentions regarding the application of a provision, we need to distinguish these from various other mental states they may have had - such as their hopes, fears, and expectations - and sometimes even from how they themselves would have applied the provision. Let me focus on the last of these, for it seems strange to imagine that the adopters of a provision could intend that others might apply it differently than they would.

The point is nicely made by the great British legal philosopher H. L. A. Hart. In describing the inevitable open texture of legal provisions, Hart explains why we should not cherish, even as an ideal, the conception of a rule so detailed that the question whether it applied or not to a particular case was always settled in advance, and never involved, at the point of actual application, a fresh choice between open alternatives. He goes on to say:

Put shortly, the reason is that ... we are men, not gods. It is a feature of the human predicament (and so of the legislative one) that we labour under two connected handicaps whenver we seek to regulate, unambiguously and in advance, some sphere of conduct by means of general standards to be used without further official direction on particular occasions. The first handicap is our relative ignorance of fact; the second is our relative indeterminacy of aim ...

Human legislators cannot know all the possible combinations of circumstances which the future may bring. This inability to anticipate brings with it a relative indeterminacy of aim. When we are bold enough to frame some general rule of conduct (e.g. a rule that no vehicle may be taken into the park), the language used in this context fixes necessary conditions which anything must satisfy if it is to be within its scope, and certain clear examples of what is certainly within its scope may be present to our minds. They are the paradigm, clear cases (the motor-car, the bus, the motor-cycle); and our aim in legislating is so far determinate because we have made a certain choice ... On the other hand, until we have put the general aim of peace in the park into conjunction with those cases which we did not, or perhaps could not, initially envisage (perhaps a toy motor-car electrically propelled) our aim is, in this direction, indeterminate. We have not settled, because we have not anticipated, the question which will be raised by the unenvisaged case when it occurs; whether some degree of peace in the park is to be sacrificed to, or defended against, those children whose pleasure or interest it is to use these things. When the unenvisaged case does arise, we confront the issues at stake and can then settle the question by choosing between the competing interests in the way which best satisfies us.

What Hart suggests is that adopters may intend to delegate discretion to subsequent decisionmakers. Indeed, the adopters have no choice but to delegate, for as the distinguished American lawyer Charles Curtis wrote: Words in legal documents are simply delegations to others of authority to give them meaning by applying them to particular things or occasions.

Fourth, Hart's and Curtis's observations suggest some other features of the relationship between intention and language: That which is voted on and adopted is not a set of intentions but a set of words. Although the words don't mean much - or else they mean too many different things - without our having some understanding of the adopters' general aims, the words also provide an important clue about how closely the adopters intended to bind future interpreters. Curtis noted that the more imprecise the words are, the greater is the delegation, simply because then they can be applied or not to more particulars. This is the only important feature of words in legal draftsmanship or interpretation. And Justice Frankfurter wrote in National Mutual Insurance Co. v. Tidewater Transfer Co.:

The precision which characterizes [the jurisdictional provisions] of Article 3 is in striking contrast to the imprecision of so many other provisions of the Constitution dealing with other very vital aspects of government. This was not due to chance or ineptitude on the part of the Framers. The differences in subject-matter account for the drastic differences in treatment. Great concepts like Commerce ... among the several States, due process of law, liberty, property, were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this nation knew too well that only a stangnat society remains unchanged.

Or, as Professor Paul Freund once remarked in a class, We ought not read the Constitution like a last will and testament lest it become one.

An interpreter faced with almost any clause, and especially one as broad as the equal protection clause, must posit a theory or principle for the clause. The starting point for this enterprise is the language of the clause and our understanding of the adopters' purposes. But the principle inevitably will be more general than anything that one can describe as the adopters' intentions. And the choice of the principle will necessarily force the interpreter to exercise discretion or judgment.

Continuing with the previous example, what theory or principle might underlie the equal protection clause? Let me mention four contenders:

1. the clause forbids discrimination against blacks;
2. the clause forbids discrimination based on race - whether against blacks or whites;
3. the clause forbids discrimination against any group that is systematically disadvantaged by those in power;
4. the clause forbids discrimination against any group.

The first of these is the "narrowest" in terms of the adopters' intentions. If the equal protection clause only forbids discrimination against blacks, then Brown is correct, but the justices in Bakke and more recent decisions overreached in thinking that the Fourteenth Amendment had anything at all to say about reverse discrimination. Also, all the decisions extending the equal protection clause beyond blacks - for example to Chinese, Mexican-Americans, or women - would be wrong.

This seemed to be Judge Bork's position in an important article he wrote in 1971. He said that the Fourteenth Amendment was intended to enforce a core idea of black equality against governmental discrimination. In the same article, however, he asserted that in order for the Court to be neutral, it should choose a general principle of equality that applies to all cases. This might suggest the fourth and broadest possible interpretation of the equal protection clause: no discrimination against any group - whites, women, men, homosexuals. Of course, Judge Borke does not adopt this position. Like former Attorney General Meese and most other conservative lawyers, he seems to choose a much narrower principle, which would prohibit all racial classifications but would not be concerned with most other classifications.

You may or may not agree with this stopping place. My own view is that the language of the equal protection clause suggests a more general principle of equality: In what must surely have been a self-conscious decision, the adopters did not even mention race but prohibited denying equal protection of the laws to any person.

What is important for present purposes, however, is not the particular choice that Judge Bork, Attorney General Meese, or you, or I, or even the Court ends up making. The point is, first, that a choice must be made; and second, that though the adopters' language and purposes can be suggestive, they cannot determine the choice - the right level of generality on which to interpret the clause.

This does not mean that the choice is based on the justices' personal whim. For the justices operate in an environment of legal, social, and political values and against the background of a tradition which constrains these choices. Let me quote from Judge Bork again - this time from a lecture, in which he drew a parallel between law and theology: Both ... fields purport to rest upon sacred texts, and it seems odd that in both the main bulwark against heresy should be only tradition. Law is certainly like that ... As Alexander Bickel observed, all we ever had was a tradition, and in the last thirty years that has been shattered. Now we need theory, theory that relates the framers' values to today's world

I agree with Judge Bork about the centrality of tradition. But I disagree with the suggestion that it has been shattered or that tradition can ever be replaced by mere theory. For better or worse, our traditions are quite resilient. More importantly, one can only think of them as being shattered in the last three decades if we imagine tradition as something static and unchangeable by those who participate in it. But that's to confuse tradition with orthodoxy. To quote Justice Harlan, our constitutional tradition is a living one.

To be sure, that tradition has not been smoothly continuous. To use Bruce Ackerman's term, we have had two major constitutional moments - two significant changes in the tradition - since the founding. One was the adoption of the Fourteenth Amendment; the second, the changes occasioned by the New Deal - an informal amendment, if you will. The last thirty years have seen considerable constitutional activity. But, as someone who teaches constitutional law and organizes his course in a chronological fashion, I have no sense of an abandonment of tradition.

The claim that tradition has been shattered lends itself to a radical form of activism in the form of ignoring well-established precedents under the guise of returning to the original understanding. I doubt that Judge Bork intends this. However, this view has been urged by Attorney General Meese, who for example, would have the Court reject the long-standing series of decisions holding that the Bill of Rights applies to the states through the Fourteenth Amendment. Our tradition of giving considerable weight to the interpretations of earlier courts tends to assure that constitutional doctrine is relatively stable, and equally important, it provides a safeguard against the justices' importing their own ideologies into the Constitution by claiming to have new insights into the intentions of the adopters. For one fact that history, or more precisely the history of doing history, has taught us is that our view of the true meaning of a provision can never be free from our own preconceptions. No matter how pure our motives, we tend to see what we expect or want to see.

Let me close by quoting against from Charles Curtis, who sums up eloquently what I have been trying to say:

Should we not pay the authors the compliment of believing that they meant no more than they said? What they left unsaid, they left open for us to decide. What then are the judges looking for, if it is not the intent of those who made the Constitution? They are engaged in doing something, not looking for anything ... The Court is not dealing with the men who made the Constitution, but what they made.

The Constitution has become something in its own right. It is an integral part of what men do with it. It has long ceased to be no more than what other men hoped they would do or intended them to do. The Constitution, together with the Court's work, is not so much pushed by the plans of the past as pulled by hopes of the future. It is not stuffed, but pregnant with meaning.

The intent of the framers when it is not expressed is only that we, the Congress, the President, and the Court, should be allowed to make good on their best hopes and cash in on their boldest bets. What our forefathers said, they said. What they didn't say, they meant to leave to us, and what they said ambiguously, indefinitely, equivocally, or indistinctly, is in so far not said.

The Constitution is in some sense a contract.

It is in every sense a contract between the people and their government, and therefore, the rules of construction for contracts (which have been in place for hundreds of years and are part of the commonlaw that we inherited from England) ought to be applied to the constitution. The rules are quite simple. For example:

-- Contracts should be read as a whole so that the various provisions compliment each other rather than cancel each other out.

-- The words in a contract should be given their plain meaning based upon common usuage unless the contract clearly indicates a different intent.

-- The intent of the parties to the contract should be based upon the words within the four corners of the document itself rather than outside references or sources that existed at the time the parties entered into the contract, except when the contract is clearly ambigious or susceptable to multiple interpretations,and even then, so-called "parole evidence" may only be used to explain the intent of the parties and never to contradict the plain meaning of the words they have chosen.

There are other rules, of course, but this is Saturday and I have my chores to do.

There are too many situations that arise where "strict constructionism" or "original intent", rigidly applied, will lead to perverse results that are in opposition to the basic principles outlined in the Bill of Rights

- the Constitution demands that we must think for ourselves, more so than those doctrines will always allow.
-G_RE-

Very true.
For instance, the basic principle behind the 2nd clearly says that the ~people~ cannot be disarmed by ANY level of our governments, local, state or federal.

Yet, -- we still have both "strict constructionism" and "original intent" advocates insisting that portions of our BOR's do not apply to states, because the USSC made a faulty decision in 1833:

" ---- Beginning with its decision in Barron v. Baltimore, the Supreme Court consistently held that the individual rights guaranteed by the first eight amendments to the Constitution were good only against the federal government.

Accordingly, the states were free to make whatever decisions they thought best about matters like freedom of speech and religion, gun control, and criminal procedure.

During the nineteenth century, the Supreme Court repeatedly reaffirmed the principle articulated in Barron and held that the Second Amendment, just like the rest of the Bill of Rights, offered no protection against infringements by the state governments on people's freedom to keep and bear arms.

During the twentieth century, the Supreme Court has applied some (but not all) provisions of the Bill of Rights to the states through the doctrine of Fourteenth Amendment substantive due process. (discussing the selective incorporation doctrine and articulating the test currently used to decide whether a particular Bill of Rights provision should be incorporated).

The Supreme Court has never said, one way or the other, whether this process of "selective incorporation" means or will mean that the Second Amendment applies against the states.

Nevertheless, whether or not the Supreme Court is likely to cook up yet another Fourteenth Amendment incorporation test in the future, challenges to federal laws require only an application of the Second Amendment itself."

- Excerpt from:
The Ends of Second Amendment Jurisprudence:
Firearms Disabilities and Domestic ViolenceRestraining Orders
Address:http://www.saf.org/LawReviews/lundends.htm Changed:3:51 PM on Wednesday, October 9, 2002

The above excerpt shows, imo, that incorporation doctrine is an unneeded legal fiction, "cooked up" to allow governments to over-regulate rights they deem dangerous.

Good excerpt. I would differ somewhat in the conclusion, though, insofar as incorporation is something of a necessary evil - instead of simply applying the Bill of Rights to the states wholesale, they've chosen to slip it in through the back door of selective incorporation. But it's far from a perfect solution - unfortunately, selective incorporation leaves us all in a neither-fish-nor-fowl sort of middle ground, where the federal courts can deprecate whatever rights they choose by the simple expedient of declining to incorporate them. And presumably, incorporation is not a one-way street - presumably, the courts can disincorporate any of the first eight amendments at any time,if they should so choose. That would, of course, mean ignoring precedent, but then again, selective incorporation itself ignores Barron quite well, doesn't it?

I'm not sure what all the fuss is about. Well, I know, but I don't buy it. I'm not looking out my window and watching the FBI driving past - I see the county police, the sheriff, the state police, et cetera. And I rather like the idea that those organizations are bound by the Fourth and Fifth amendments, that when I am accused of a crime in state courts, my inalienable right to counsel will not be ignored, and so forth. "States rights" are all well and good, but they cannot come at the expense of citizens' rights, nor can they be permitted to trump same.

I am not saying that there is no room for prudence in the understanding and application of the law (constitutional or otherwise). But in the case of judges, the prudence exercised concerns what is equitable, meaning do the facts in the particular case fit under the general rule expressed by the law, what Aristotle calls epikeia.

What Brest calls "prudence," meaning the changing the previously accepted general understanding of the law to make it fit under new circumstances is a power belonging not to judges, but to the legislator or the amendment process (that's what they're there for).

I am not complaining about your post, but I am sick to death of hearing about "judicial supremacy" (tyrrany) dressed up the robe of liberty.

Oppression of individuals or groups is one of the risks of life in a federated republic. There are others, such as the failure of civilization to thrive. The chaos following the fall of the Roman Empire was devastating to all involved.

But given that we are discussing certain potential losses of liberty, we distinguish those threats coming from local authorities, against those coming from state or federal authorities.

There are some who perceive that the greater authority of the feds is benign and keeps the local yokels honest. There are others who perceive that the federal government is obtrusive and enforces a set of rules that may make sense to those people three thousand miles away, but sure don't make sense to us here.

Let's look at your statement: I see the county police, the sheriff, the state police, et cetera. And I rather like the idea that those organizations are bound by the Fourth and Fifth amendments, that when I am accused of a crime in state courts, my inalienable right to counsel will not be ignored, and so forth. "States rights" are all well and good, but they cannot come at the expense of citizens' rights, nor can they be permitted to trump same.

What is the real source of this sense of security? I am curious. Let's assume that your state, acting on its own, has exactly the same rights to counsel, and so forth. Why do we mistrust the state, but trust the feds?

Why do we mistrust the state, but trust the feds?

Ah, but the point is, I don't trust either of them. The feds have vast resources with which to screw with me, if they choose, and the locals are here in my face, up close and personal, allowing them to screw with me in ways that the feds can't, if for no other reason than that I am far more likely to go unnoticed by Congress than by the local sheriff. The feds are immensely powerful, but they are far away. The locals are somewhat less potent, but I am far more likely to encounter the minor demons they represent than I am to run afoul of the arch-fiends in Washington. The next time you have to stand in line for two hours at the DMV, remember that it's not Congress, generally speaking, who's making you waste your valuable time like that.

And that's sort of the point of making the Bill of Rights binding upon all state actors, at every level. "Inalienable" rights that can be violated and are unrecognized by the very people you are most likely to need their protections against are, as a practical matter, worthless. Ask tpaine - he'll be happy to tell you how your "inalienable" right to keep and bear arms is entirely "alienable" if you happen to live in California, or New York City, or Washington DC, or a host of other places. And an "inalienable" right that you can't actually exercise is purely a theoretical construct - it no longer has any practical relevance to your life or the way you live it.

This article is not likely to be a popular line of thinking around here, but it's got several points that deserve a certain amount of consideration.

It's precisely those articles that make strong arguments "for the other side" that most need to be posted here--so that we can criticize them, and learn how best to counter and refute them. Such articles should be celebrated as the great oppurtunities they are for us to hone our rhetorical skills and intellectual ammunition for use against "the other side."

The Constitution relies on the citizenry to be wise and thoughtful and reasonable - it does not, and cannot, rely on a judiciary functioning as high-priests of the Constitution, divining things like "original intent" from wherever they can. Madison, Jefferson, Hamilton, et cetera - they would, all of them, rightly be horrified at the suggestion that their words were to be read as gospel, that we should essentially stop thinking for ourselves, and that is exactly what both of those doctrines require, when taken to their logical conclusions. There are too many situations that arise where "strict constructionism" or "original intent", rigidly applied, will lead to perverse results that are in opposition to the basic principles outlined in the Bill of Rights - the Constitution demands that we must think for ourselves, more so than those doctrines will always allow.

The words of the Constitution itself should be the principle source of its interpretation. Whether the words "no law...abridging the freedom of speech" applies to the internet depends only and entirely on whether one honestly thinks that messages sent over the internet (such as all of our postings here) are rightfully to be considered "speech," as the Framers would have understood the term. In other words, would James Madison (or other educated persons of that era) think that this comment I'm making is "speech?" That's the right methodology of interpretation.

The words of the Constitution are not properly understood as the set of all their late 18th-century referents, but instead as a function of their semiotic sense. The sense of words is how we normally interpret their meaning in a legal context.

I see the first part, the devils all around you versus the far-away arch-fiends. But I don't quite see the second part.

... the point of making the Bill of Rights binding upon all state actors, at every level. "Inalienable" rights that can be violated and are unrecognized by the very people you are most likely to need their protections against are, as a practical matter, worthless.

I do see that California, big enough to be its own country, must have had a lousy set of founders if they haven't constitutionalized that a person's means of self-protection are inviolable. But what if I live in a state that has had more liberty-minded founders? Say it has an even more sharply drawn BOR than the US, what good would incorporation be to the folks in my state?

By focusing on original intent, strict constructionists do themselves a disfavor by making their argument too easily refuted. The issue is not what was intended but what was said.

I agree.

A primary focus on intent assumes that the drafters did a perfect job expressing their intent in the words they used. If we assume that, perhaps, as with any author, what they said is not always what they meant to say, how should we respond? Should we base our laws on what the drafters of the Constitution said or what they intended to say?

If the drafters' intent was to give Congress the power to make some laws abridging the freedom of speech, then they did a poor job in using the words they did to express that intent when they wrote "Congress shall make no law abridging the freedom of speech."

By basing interpretation of intent rather than on the words used, and if the drafters did a poor job in expressing their intent, you will eventually have a set of laws that have no relation to the words used in the Constituion. Thus, although the First Amendment says "Congress shall make no law," the Courts have looked to the drafters' intent rather than the words of the First Amendment, and we have many laws made by Congress that, in fact, abridge the freedom of speech.

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