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 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.

Is there doubt in your mind that our posts are ~not~ protected free speech?

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.

"Semonic sense" is necessary to understand the constitution?
-- Amusing idea, as that site is non-sensible pretentious blather, imo.

Say it has an even more sharply drawn BOR than the US, what good would incorporation be to the folks in my state?

None, but in that case, it doesn't do any harm, either. The long-standing doctrine is that the Constitution as interpreted by the courts is understood to provide a minimum level of rights-protection - if states want to go farther than that, they can. The First Amendment is not the end of free-speech rights-protections, but merely the beginning, the bare minumum. Such was the reasoning in Pruneyard - you did look up the Pruneyard case, right? ;)

Ah, I now understand that what some people appear to mean by "intent," and what I mean by "intent," are not at all the same. Others seem to think that "intent" refers to the specific events, issues, and/or situations that motivated the Founders to include certain clauses in the Constitution. I see "intent" as simply referring to the sense of the words as the authors would have understood them in the surrounding textual context, illuminated as necessary by the issues that motivated them, but not limited to only those issues.

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.

I agree in principle, but problems occasionally arise when we start thinking in those terms, not least of which because they weren't always consistent in what they said or what they meant. Many of those same founders who signed off on the First Amendment later brought you the Sedition Act. They seemed to think that it was consistent with the First Amendment, but I'm not so sure we want to make the same reconciliation between the two that they did.

Our mistrust is supposed to be part of the check/balance system.

Yes. Thank you. Checks and balances.

I see some dynamics at work which I will try to describe in a general way so that nobody understands it.

The governing body closest to the people has nothing to gain through greater individual rights. In the interest of its own stability, it will tend to limit them. That may backfire, but still that is the tendency.

The federal governing body, though, has nothing to lose by guaranteeing greater individual rights. It thereby weakens the local level, which is in its own interest. Checks and balances.

Is there doubt in your mind that our posts are ~not~ protected free speech?

I'm sure there are those who think "speech" in the First Ammendment refers only to the spoken word, and words written on paper. I'm not one of them. Not at all.

"Semonic sense" is necessary to understand the constitution? -- Amusing idea, as that site is non-sensible pretentious blather, imo.

Have you published any papers, in referred scientific journals, with your detailed and scholarly criticisms of semiotics? If not, perhaps you should. I'm sure it would be quite enlightening.

you did look up the Pruneyard case, right? ;)

Appellants are high school students who attempted one Saturday afternoon to solicit support for their opposition to a United Nations resolution against "Zionism." They set up a cardtable in a corner of Pruneyard's central courtyard and sought to discuss their concerns with shoppers and to solicit signatures for a petition to be sent to the White House in Washington. Their activity was peaceful and apparently well-received by Pruneyard patrons.

That Pruneyard?

I understand what you are saying, but how does that help with the First Amendment? Are you saying that the word "no" meant something different to them than it does to us?

I really don't care how the authors would have understood the words in the Consitution, since the very same words probably meant different things to different people (as they do now). I look only at the words. To me, no means no. To me, any law passed by Congress abridging the freedom of speech is a violation of the First Amendment.

Under your view of intent, how do we deal with words in the Constitution which the authors misundrestood? What if they did a poor job with expressing their desires using the words of the day? Should we jetison the words and go try to figure out what they really meant to say?

When the Federal Courts misinterpret the law in such a way that they "abridge freedom of religion" in the name of protecting it, then the de facto result is to violate individual liberty. I suspect this is what bothers you.

One of the things. Another is referenced in the Jonah Goldberg essay EU Carnivale (Jonah Goldberg . Jonah describes some risks of the increase in centralization with the corresponding decrease in federalism.

The current filibustering of appelate judge nominations could serve as an illustration. What is the cause of this stand-off that is weakening our judicial system by making appointments a fight-to-the-death battleground?

The cause is the inflated importance of the Supreme Court caused by Incorporation. SCOTUS is the sole arbiter for profoundly important social policies. One central body for the entire country of 300 million. If the arbitration were spread out, federalized, you would not see this level of factioning.

G_RE wrote:
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.
31 by general_re

NutCrackerBoy wrote:
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.

Neat little "arch-fiends" tar baby. Congrats.

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?

"What if" indeed?

Do you really have a problem understanding the generals point of "making the Bill of Rights binding upon all state actors, at every level"?

As he said:
" --- "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."
What is that you find it difficult to "see"?

~Why~ is it you find it so difficult to support compliance at the state/local level with our BOR's?

"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."

First and foremost, We the People established the constitution to secure our liberties. Anything else is secondary and should be approached and constructed with one eye always on keeping those liberties secure.

Without liberty, there would be no perfect union to establish. Without a more perfect union, there would be no justice, no domestic tranquility, and no unanimity in promoting the general welfare (whatever that is supposed to mean, as there is a difference between promoting and providing for).

We the People, through our elected representatives ratified the constitution as a means to marshall resources to protect our liberties at a national level. We did not ratify a document that would suppress our liberties in the least, which would have been quite stupid. And we did not authorize government to define, enumerate and shape our inalienable rights.

We didn't stipulate we were going to agree to lessen our liberties, as no person can speak for another when inalienable rights are on the table. It is therefore very logical to make the determination that government was created to protect liberty. Not only to protect one person's liberty from the assault of another person, but to keep the people's liberty insulated from government intrusion itself.

We had those liberties before the Constitution was written. If a person's liberties and freedom are threatened, let the offender be named and tried. The government cannot be offended, as it isn't a person. Therefore, it can't file a complaint against a person on its own behalf for that would be tantamount to We the People suing itself.

If we allowed that, it would be allowing the government to unilaterally alter the terms of its contract -- separating itself from We the People and issuing in a subtle, but absolute tyranny.

I am not aware of any change in the sense of the word 'no' since the Constitution was written(except when Clinton is speaking.)

The key to understanding my view of intent lies in the distinction between reference and sense. For example, the sense of the word "speech" is an abstract concept. The abstract concept has many potential concrete referents, such as verbal speech, written speech in a newpaper, electronic signals broadcast over radio, etc. My contention is that the word "speech" in the First Ammendment must be understood as the abstract concept "speech," and not as the set of all referents known in the late 18th century.

Under your view of intent, how do we deal with words in the Constitution which the authors misundrestood?

The same way we would deal with such situations in contract law. A contract binds you to the normative sense of what the contract says, not what you may have thought it meant in practice. A contract or a Constitution defines the "rules of the game," not just the specific plays that will be made in a specific instance of the game (although those who write the words are usually motivated by such past specific cases.)

"Against my will almost, this essay forced me to see that prudent interpretation can be contrary to original intent. "

LOL! That's why you should always bring your a lawyer to court! They're trained in rhetorical tricks.

Prudent interpretation is never contrary to original intent. The text and intent are neccessarily the same!
Interpretation consists of following the text AND the intent. When after good and faithful effort the judge finds using BOTH he cannot address the case- and that can happen in an infinite universe- then, and only then, is he at liberty to take the best meaning he can to address the issues.
And that is so whatever constitutional ideology the judge may have.

As Madison put it: "As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character . . . [T]he legitimate meanings of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be . . . in the sense attached to it by the people in their respective State Conventions, where it received all the authority which it possesses."
Letter to Thomas Ritchie, September 15, 1821 (Madison, 1865, III, page 228) "

The author has set a false dichotomy for you. The conflict is between those who do as Madison said, and those who read into the text what they wish to and can in spite of the intent.

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