Roberts and "Original Intent"
Bill Long 9/16/05
An Exchange You May Have Missed
One of the hot issues in legal circles from the 1980s until today is how to evaluate the philosophy of "original intent jurisprudence." The phrase, coined in the early 1980s in response to a perceived overreaching Supreme Court (especially in the 1973 decision Roe v. Wade), was used by people who liked to stress they were not guided by social scientists in coming up with their legal conclusions but by the 'original meaning' of the phrase at issue. How was this to be divined? Of course there would be a lot of historical work involved, even though the movement was divided on the value of "legislative history" in coming up with their understanding of what the original intent was. In fact, it was a term devised to use primarily in constitutional cases and stressed the importance of understanding the views of the Founding Fathers on the meaning of a constitutional provision.
Naturally this approach was attacked as a veiled way to try to import a conservative policy agenda under the "cover" of "original intent." In addition, others attacked this theory by arguing that you really can never get to a "Founder's Intent," because, in fact, several different approaches to the meaning of nearly every phrase came forth from the Founders. And objectors further argued that even if you could divine a unitary meaning from the beginning, did this necessarily indicate that it was the meaning for today? Didn't we have a "living" or "evolving" constitution that had to address issues that weren't even a glint in the Founder's eyes? And so the debate went on and on, and it still continues today.
Thus, when Judge Roberts was quizzed on his understanding of how he would read the constitution, this issue of "original intent" was always swimming in the background. The following exchange between the (liberal) chair of the committee, Arlen Specter (R-PA) and Roberts probes the issue.
Specter and Roberts on Original Intent
SPECTER: "Before taking up the issue of the confrontation or clash between the Congress and the Supreme Court, I want to pick up a few strands from yesterday's (i.e., September 13) testimony.
Near the end of my questioning, I commented on the case of United States v. Dickerson where if a chief justice had made a modification of his earlier objections to Miranda and said that the Miranda warnings ought to be upheld, contrasting his view in 1974 in a Supreme Court decision with his view in the year 2000, saying that Miranda should not be overruled because it has been embedded in routine police practices and become a part of our national culture -- that has all of the earmarks of the doctrine of a living constitution.
Dissenting in Poe v. Ullman, Justice John Marshall Harlan made one of the famous statements on this issue, saying that the -- commenting on liberty, the quote, "The traditions from which it is developed," quote, "that tradition is a living thing."
And my question to you is: Do you regard the evolution of various interpretations on liberty as a living thing as Justice Harlan did and as Justice Rehnquist appeared to on the Miranda issue?"
[MY COMMENT: Note what Senator Specter is doing. He is trying to show that former CJ Rehnquist, himself one of the most conservative members of the Court, actually believed in a "living" constitution. The implication is that the CJ wasn't tied to any "original intent." Liberty lives and has to adjust itself to the new realities of our day.]
ROBERTS: "Well, I think the framers, when they used broad language like "liberty," like "due process," like "unreasonable" with respect to search and seizures, they were crafting a document that they intended to apply in a meaningful way down the ages.
As they said in the preamble, it was designed to secure the blessings of liberty for their posterity."
[MY COMMENT: At this stage Judge Roberts is being carefully evasive. He certainly believes, as everyone does, that the Constitution still "applies" to today, but he leaves it open whether the phrases he quotes were themselves filled with the content that we find in them today from the beginning of our Republic or only became filled up by later ages.]
ROBERTS: "They intended it to apply to changing conditions. And I think that, in that sense, it is a concept that is alive in the sense that it applies -- and they intended it to apply, in a particular way, but they intended it to apply -- down through the ages."
[MY COMMENT: Now he may have tipped his hand. The Founders "intended" it to apply in a particular way. That is, he may be suggesting in some way the Founders' meaning still 'controls' our deliberations. This notion of 'control,' though not mentioned by Roberts, is then crucial in the debate. If a person argues that the meaning of the Founders' controls our meaning today, then that person is an 'originalist,' and it means that we have to spend most of our time trying to ascertain what a particular constitutional provision means. Once its meaning is established, we have a meaning for today.
Originalists, however, are not in agreement among themselves on the following point. Some will suggest that not only the original meaning controls but that later Supreme Court glosses trying to breathe a broader significance into it are not permitted. A case in point is the "takings clause" of the 5th Amendment. It says in part that private property may not be taken for public use without just compensation. But it says nothing about whether private property can be taken by public authorities and given to other private parties as long as there is just compensation. One type of originalist would argue that because the text is silent, such a practice cannot be countenanced. Another type of originalist would argue that the principles behind the early debate of the 5th Amendment might give us insight into the issue of whether private property may be taken by a public authority and sold to other private parties and that this insight must control our decision today. Originalism is today associated primarily with Justice Clarence Thomas and, I think, not completely accurately, with Justice Antonin Scalia--the most conservative members of the Supreme Court. Thus, when Roberts used the term 'intent' in answer to Senator Specter's question, he was potentially opening a can of worms, but still speaking vaguely.]
The next essay considers the conclusion of their exchange on this issue.
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