Conservatives,· those great architects of negative advertising, enormous deficits, and a bankrupt foreign policy, have also created another profoundly absurd issue: that of Original Intent. "We need to return to the Constitution of the Founding Fathers," they cry, "down with judicial activism," (totally ignoring the 40 some years when a very conservative Supreme Court at the turn of the century moved in a very activist manner.) Leonard Levy, a leading constitutional historian, has mercilessly exposed the Meeseian folly of a "Jurisprudence of original intention." The irony of all this is that the framers understood their own limitations. They used spacious words and phrases that left room for adaptation to change. And they took very specific care not to create a legislative history of their own thinking that would confine the Constitutional text to the literalism of what they expected in 1787. No stenographic record was made of the debates; the participants notes are sketchy, many left none at all; and almost 30% of the participants did not even sign the document.
As in any compromise, the delegates saw different meanings in the words on which they finally agreed. Levy shows, however, that even the most executive minded of the delegates, Alexander Hamilton, viewed the Presidency as the agent of the Congress, that matters such as foreign policy and war and peace were the prerogative of Congress. They were deathly afraid of a vigorous president, having had plenty of experience with strong monarchs. What a delicious irony.
Those who would have us return to the framers' intent insist on a strong presidency with the right to trample over Grenada and Nicaragua at will display "either their ignorance or their hypocrisy.( Of course, liberals, when their President holds office are just as bad, witness Arthur Schlesinger Jr.'s great flip-flop )
In the end there is no escape from the text of the Constitution, or from the judges' obligation to interpret it. "Just what our forefathers did envision," Justice Robert H. Jackson said, "or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh." Thus the equal protection clause, despite what Robert Bork would have us believe, applies to all persons, including women, blacks, and undesirables. We need to return to the text, not to what some would have us believe was behind the text.
Excellent book. Required reading for anyone who follows the Supreme Court.
