The term original intent refers to the notion that the judiciary should interpret the Constitution (including its amendments) in accordance with the understanding of its framers. The courts’ commitment to original intent is somewhat tested, however, by the reality that the framers’ intentions are not always easy to identify.
Madison believed constitutional interpretation should rest on the intentions of the people who ratified the Constitution
Another factor is that it has never been clear to what extent the framers’ intentions are relevant to the task of establishing constitutional norms. Some even disagreed on this point. James Madison, one of the drafters of the Constitution, felt strongly that future interpretation of the document should not rest primarily on the intentions of the framers, but on the intentions of the people who, through their state representatives, ratified the Constitution. In part, this reasoning explains Madison’s decision not to make public for many years the notes he took at the Constitutional Convention.
Hamilton believed the Constitution's text should control the interpretation
Alexander Hamilton, who signed the Constitution on behalf of New York, looked to the Constitution itself, believing that the text should control its interpretation. In his view, the Constitution spoke for itself; there was no need to go behind it to ascertain the intent of the framers. However, in what it says, the Constitution is liberal in granting powers to the national government.
Jefferson advocated for strict constructionism
Thomas Jefferson advocated still another method of constitutional interpretation: the rule of strict constructionism. Jefferson strongly asserted that the Constitution and Bill of Rights were grounded in the principle embodied in the Tenth Amendment: that all undelegated powers are reserved “to the states respectively, or to the people.” Yet even Jefferson violated his interpretive theory when, after originally concluding that the Louisiana Purchase required a constitutional amendment, he authorized the transaction without one.
Original intent of the Bill of Rights
It can be unclear what the framers were thinking when they drafted the Bill of Rights. The Bill of Rights was not a part of the document drafted at the Constitutional Convention in 1787. Almost all the delegates believed a bill of rights would be superfluous. The new federal government possessed only limited powers delegated to it by the states; no power had been granted to legislate on any of the subjects that might be included in a bill of rights. Therefore, an enumeration of rights was not necessary.
From late 1787 until 1789, the proposed Constitution was considered by the various state ratifying conventions. Meanwhile, a strong Anti-Federalist element developed quickly. The Anti-Federalists opposed ratification, fearing that the centralizing tendencies of the new document would crush the rights of states and individuals. For many of the states, the only solution to this problem was to mandate inclusion of a bill of rights. Indeed, six of the 13 states — Massachusetts, New Hampshire, North Carolina, New York, Rhode Island, and Virginia — accompanied their instruments of ratification with a list of recommended amendments that would secure various personal liberties, such as “rights of conscience,” “liberty of the press,” and “rights of trial by jury.” However, the records of the debates of the state ratifying conventions are of little help in ascertaining the precise meanings that such liberties were to assume.
Separationist and accomodationist ways of interpreting religion clauses of the First Amendment
The first rights enumerated in the First Amendment pertain to religion: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Of the six states that recommended amendments to secure personal liberties, all but Massachusetts submitted proposals about religious freedom. Apparently, Massachusetts legislators did not feel that the Massachusetts religious establishments were in any way threatened by the proposed Constitution; they believed that the new federal government was to be impotent in matters of religion.
For the religion clauses, two basic interpretations of what the constitutional framers intended have emerged — the separationist and the accommodationist. The separationist interpretation suggests a strict separation between civil authority and religion. Although governmental authority should protect the private “free exercise” of religion, no church or religious group should receive any form of governmental aid. The accommodationist view holds that the framers intended for the establishment clause to prevent governmental establishment of a single sect or denomination of religion over others.The framers, they contend, intended only to keep the government from abridging religious liberty by discriminatory practices generally or by favoring one denomination or sect over others. Neither view, however, was well articulated, nor can either claim to have represented the clearly understood meaning of the religion clauses in 1789.
Framers' thinking is unclear in First Amendment rights
As for the remaining rights enumerated in the First Amendment, it is equally unclear exactly what the framers were thinking. Most scholars believe they were thinking rather broadly, with few restrictions on the rights enumerated. Virtually everyone agrees that First Amendment rights were fundamentally limitations on federal and not state power. Thus there was little reason to interpret the various rights. In fact, from the time the Bill of Rights was ratified in 1791 until World War I, Congress passed only one law restricting speech — the Sedition Act of 1798. It was not until the Espionage Act of 1917 and the Sedition Act of 1918 that an intense debate over the meaning of the free speech clause began. That debate, like the meaning of all of the First Amendment rights, has largely played out in the courts.
As for freedom of the press, if there was anything close to a consensus in the founding era it was likely the common law view expressed by English jurist William Blackstone: “The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published” (Blackstone 1872: 4:151).
Few suggest that there should be no limits on speech, press, assembly, and redress rights. Rather, the debate is over where to draw the line between protected and nonprotected expression. In some areas, such as pornography and flag burning, it is exceedingly difficult to know where to draw the line. Individual interests are pitted against society’s larger interests, and the courts do the line drawing. Whether the courts’ decisions conform to the framers’ original intent will always be a matter of considerable debate.
This article was originally published in 2009. Derek H. Davis is the former director of the J.M. Dawson Institute of Church-State Studies and editor of Journal of Church and State. He is also the former director of the University of Mary-Hardin Baylor Center for Religious Liberty. He now practices law in Dallas, Texas. He is the author or editor of nineteen books and has also published more than 150 articles in various journals and periodicals. He serves numerous organizations given to the protection of religious freedom in American and international contexts.
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Sweezy v. New Hampshire (1957) stands as the first U.S. Supreme Court case to expound upon the concept of academic freedom though some earlier cases mention it.
Most constitutional academic freedom issues today revolve around professors’ speech, students’ speech, faculty’s relations to government speech, and using affirmative action in student admissions.
Although academic freedom is regularly invoked as a constitutional right under the First Amendment, the Court has never specifically enumerated it as one, and judicial opinions have not developed a consistent interpretation of constitutional academic freedom or pronounced a consistent framework to analyze such claims.
They would have been clear-eyed about the role of the Court and the dangers of too much fidelity to their original designs. By Wilfred Codrington III
About the author: Wilfred Codrington III is an assistant professor at Brooklyn Law School and a fellow at the Brennan Center for Justice at New York University School of Law. He is the co-author of The People's Constitution: 200 Years, 27 Amendments, and the Promise of a More Perfect Union.
On Monday, the Supreme Court will begin a new term. The justices are slated to consider a few extremely consequential issues, including in cases concerning abortion and guns. But if the opinions issued at the end of the most recent sitting taught us anything—particularly the decision in Brnovich v. Democratic National Committee, which sapped Section 2 of the Voting Rights Act of its potency—it is this: Americans can no longer rely on the federal judiciary to safeguard their fundamental right to vote. And given the Court’s open hostility toward measures aimed at preserving U.S. democracy, legislation may be futile too. What’s left? Advocates charting a path forward should think back to the Framers. They would resort to extraordinary measures. They would consider amending the Constitution. In general, I am no proponent of speculating what long-dead politicians would do if they were here now. There’s too much room for error, and no way of definitively proving any particular hypothesis. However, ample historical evidence exists to support the assertion that those who drafted and ratified our national charter considered it essential that the American people have the final say on its meaning. If the Court is getting it wrong, we have a civic duty to get it right, by pushing our elected lawmakers to update the Constitution in a way that promotes democracy and reflects our current values. As I, along with my co-author, write in our new book, The People’s Constitution, the Framers encountered an obstinate or wayward Court repeatedly and, in the most extreme cases, they opted to amend the Constitution to enshrine enduring principles and vindicate the popular will. Perhaps the best evidence comes from the 1790s, when many of the Framers were still alive and governing. In a case known as Chisholm v. Georgia, the justices heard the plea of an executor of an estate seeking repayment for goods supplied to the state in support of the revolution. Georgia declined to respond to the suit, arguing that the common law doctrine of sovereign immunity protected it from citizen suits. The Court ultimately held that Article III’s language—that “the Judicial Power shall extend to all Cases … between a State and Citizens of another State”—meant what it says: that federal courts have jurisdiction to hear Americans’ claims for redress against states. In a prescient 1793 opinion, Justice William Cushing advised, “If the Constitution is found inconvenient in practice in this or any other particular, it is well that a regular mode is pointed out for amendment.” The Framers took that advice to heart. Within two years of the Court’s decision, Congress had proposed and the states had ratified the Eleventh Amendment, overturning the ruling and curtailing federal-court jurisdiction, thereby ridding the new national charter of what they deemed to be one of its early kinks. Jonathan Rauch: The 5 Trump amendments to the Constitution
Later amendments dealt with much more severe problems. The Thirteenth and Fourteenth Amendments, the capstones of the abolitionist movement, were enacted following the Civil War to remedy the Framers’ gravest offenses: their contemptible embrace of slavery and disdain for the idea of equal citizenship. Notably, the Constitution did not use the word slavery until the Thirteenth Amendment. Nor, until the Fourteenth Amendment, did it set out the requirements or rights of American citizenship.
The architects of these most important amendments drafted them in response to the odious Dred Scott decision, in which the Court held not only that Black people could not be citizens, but that they were “beings of an inferior order,” possessed “no rights which the white man was bound to respect,” and could “justly and lawfully be reduced to slavery for his benefit.” In theory, the amendments eradicated the institution of slavery and conferred upon 4 million Black men and women the rights that the Declaration of Independence recognized as innate and indispensable. In reality, it would take another century for those promises to start to take hold. Yet, in enacting the pair of amendments, the American people issued a rebuke to the members of our highest tribunal, and seared the principles of liberty, equality, citizenship, and related rights into the national charter for later generations to build on.
American citizens continued to uphold this tradition into the next century. During the Progressive era, the Sixteenth Amendment displaced the Court’s decision in Pollock v. Farmers’ Loan & Trust Co., thereby allowing Congress to enact federal-income-tax legislation necessary to sustain a modern global power. The Twenty-Fourth Amendment, ratified at the apex of the civil-rights era, outlawed the imposition of poll taxes in federal elections, partially reversing the Court’s ruling in Breedlove v. Suttles. And the Twenty-Sixth Amendment, which establishes a national voting age of 18, was adopted and ratified in just over three months to reverse Oregon v. Mitchell, a Supreme Court ruling that invalidated part of the amended and reauthorized Voting Rights Act. Remedying misguided Supreme Court decisions is a leading reason for amending the Constitution, and, as the Thirteenth and Sixteenth Amendments make clear, doing so can lead to an entire new era of constitutional change.
But, although there have been intense, compressed periods of constitutional change, excessive restraint has more commonly prevailed. During these “normal” periods, the charter has not been subjected to textual revision. Some believe that we should refrain from tampering with the Framers’ handiwork. Others suggest that amending the Constitution is impossible or think it wiser to spend political capital and resources on more attainable goals. None of these responses is new. Throughout history, advocates of an unworkable status quo employed the language of constitutional idolatry and pessimism to oppose sorely needed change.
James Madison, the father of the Constitution, envisioned that the amending clause would balance between the two possible poles. “It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.” He believed, in other words, that amending the Constitution should require work. We should neither take up the amendment pen lightly nor, by the same token, inhibit ourselves when time and experience reveal defects in our national charter that render it incompetent. The examples above are indicative of the Framers’ expectations: an engaged polity pressing for reasoned and deliberative constitutional change informed by practical experience.
What does this mean for today, particularly in light of the Brnovich decision, and the decision in Shelby County v. Holder that eviscerated Section 5 of the Voting Rights Act less than a decade ago? Given the judiciary’s failure to enforce federal election statutes, and the limitations it has imposed on Congress and individual voters seeking to protect the franchise, mere legislative changes may be a meager substitute for a constitutional amendment explicitly granting the right to vote—a move that an increasing number of advocates are championing. Despite the enactment of more than half a dozen amendments that have expanded and diversified the American electorate, our Constitution currently lacks a universal-suffrage guarantee. An affirmative right to vote for all, instead of itinerant and aspirational nondiscrimination principles, can help to ensure that the franchise will be open to every U.S. citizen.
An alternative approach might address the power of the Court itself. On this, too, there has been no shortage of discussion. Indeed, as far back as the ratification debates, the Anti-Federalist Brutus augured the advent of judicial supremacy. The Constitution could make the justices “independent of the people, of the legislature, and of every power under heaven,” he wrote. “Men placed in this situation will generally soon feel themselves independent of heaven itself.”
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Today’s commentary aimed at reining in the excessive judicial intervention and erroneous decision making focuses on a range of other reasons why Court reform is due: the marked increase in the number of federal lawsuits filed; the record-low number of cases on the Court’s docket; the lack of diversity on the bench, particularly given that 108 of the 115 justices have been white men; the heated judicial-confirmation battles and novel constitutional hardball tactics—such as the Senate Republicans’ refusal to hold hearings for a Democratic nominee to a vacant Supreme Court seat eight months before a presidential election, while ramming through a Republican nominee just eight days prior to the following election.
Justice Stephen Breyer has been a vocal critic of proposals to restore legitimacy to the high court, including amending the Constitution to impose judicial term limits. President Joe Biden, making good on a campaign promise, has impaneled a commission to study the issue, though many believe the group will not endorse any significant reforms. And although justices have weighed in on the need for constitutional change in the past, and presidential commissions have laid the ground for constitutional reform, the fact of the matter is that when it comes to amending our national charter, neither the president nor the members of the nation’s highest court possess a formal role. Article V—the section of the Constitution that lays out the process for adding amendments—leaves the levers of change with federal and state lawmakers, so that the representatives of the people, who are the ultimate sovereign, lead the charge on their behalf.
In a famous witticism, Justice Robert Jackson quipped, “We are not final because we are infallible, but we are infallible only because we are final.” On several occasions, the people have proved this statement wrong, amending the Constitution to correct a Court that has stumbled and fallen astray. Given our current, hyper-conservative Court’s assault on democracy and other fundamental rights, we should be the next generation of Americans to do the same.