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Original Intent and the Framers' Constitution
For 200 years, a debate has raged between those who believe jurists should follow the original intentions of the Founding Fathers and those who argue that the Constitution is a living document subject to interpretation by each succeeding generation.
In our time, the controversy has flared anew. Conservatives use the doctrine of "original intent" to oppose liberal reforms. Liberals fire back that such claims are simplistic and reactionary.
Now, an eminent constitutional scholar approaches the problem from a historical and legal perspective, focusing on the judicial process and judicial review.
Leonard W. Levy cuts through the Gordian Knot of claim and counterclaim with an argument that is clear, logical, and compelling. Rejecting the views of liberals and conservatives, he evaluates the doctrine of "original intent" by examining the sources of constitutional law and landmark cases.
The Framers of the Constitution, Levy shows, rejected reliance on their original intent. He also proves that reliance on ratifier intent is unfeasible. He analyzes the difficulties of discerning original intent from inadequate records and demonstrates that even when that intent may be ascertained, it may have passed out of date or be undesirable. He shows that the Framers knowingly left various constitutional provisions vague and ambiguous, especially as to rights and powers, which often conflict. He examines the original intent of various provisions of the Constitution, finding that the imperial presidency has no support in the Framers' understanding, but that the Constitution, through its text and its history, embodies broad principles and purposes, especially as to individual rights, that the Framers meant should endure.
Levy also shows that those who profess allegiance to the doctrine of original intent have, throughout our history, interpreted it to suit their own purposes and have ignored it when it conflicted with their own policies. He finds that as true today as ever and regards original intent as an unrealistic basis for our constitutional law.
That law, finally, is not grounded in original intent. Judicial activism—the constant reinterpretation of the Constitution—is inevitable; what keeps the constitutional spirit alive is the ability of intellectually honest jurists to recognize the need for evolution. The text and purposes of the Constitution, Levy demonstrates, steer us, not attempts to read the minds of the Framers.
In our time, the controversy has flared anew. Conservatives use the doctrine of "original intent" to oppose liberal reforms. Liberals fire back that such claims are simplistic and reactionary.
Now, an eminent constitutional scholar approaches the problem from a historical and legal perspective, focusing on the judicial process and judicial review.
Leonard W. Levy cuts through the Gordian Knot of claim and counterclaim with an argument that is clear, logical, and compelling. Rejecting the views of liberals and conservatives, he evaluates the doctrine of "original intent" by examining the sources of constitutional law and landmark cases.
The Framers of the Constitution, Levy shows, rejected reliance on their original intent. He also proves that reliance on ratifier intent is unfeasible. He analyzes the difficulties of discerning original intent from inadequate records and demonstrates that even when that intent may be ascertained, it may have passed out of date or be undesirable. He shows that the Framers knowingly left various constitutional provisions vague and ambiguous, especially as to rights and powers, which often conflict. He examines the original intent of various provisions of the Constitution, finding that the imperial presidency has no support in the Framers' understanding, but that the Constitution, through its text and its history, embodies broad principles and purposes, especially as to individual rights, that the Framers meant should endure.
Levy also shows that those who profess allegiance to the doctrine of original intent have, throughout our history, interpreted it to suit their own purposes and have ignored it when it conflicted with their own policies. He finds that as true today as ever and regards original intent as an unrealistic basis for our constitutional law.
That law, finally, is not grounded in original intent. Judicial activism—the constant reinterpretation of the Constitution—is inevitable; what keeps the constitutional spirit alive is the ability of intellectually honest jurists to recognize the need for evolution. The text and purposes of the Constitution, Levy demonstrates, steer us, not attempts to read the minds of the Framers.
525 pages, Hardcover
First published January 1, 1988
About the author
Leonard W. Levy
57 books7 followersLeonard Williams Levy was the Andrew W. Mellon All-Claremont Professor of Humanities and Chairman of the Graduate Faculty of History at Claremont Graduate School, California. He was educated at Columbia University, where his mentor for the Ph.D. degree was Henry Steele Commager.
Levy's most honored book was his 1968 study Origins of the Fifth Amendment, focusing on the history of the privilege against self-incrimination. This book was awarded the 1969 Pulitzer Prize for History. He wrote almost forty other books.
In 1990, Levy was appointed a Distinguished Scholar in Residence; Adjunct Professor of History and Political Science at Southern Oregon State College in Ashland, Oregon.
Levy's most honored book was his 1968 study Origins of the Fifth Amendment, focusing on the history of the privilege against self-incrimination. This book was awarded the 1969 Pulitzer Prize for History. He wrote almost forty other books.
In 1990, Levy was appointed a Distinguished Scholar in Residence; Adjunct Professor of History and Political Science at Southern Oregon State College in Ashland, Oregon.
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Displaying 1 - 5 of 5 reviews
November 11, 2023
Leonard Levy’s critique of “original intent” – the claim that judges should confine their interpretations of the Constitution of the United States to its meaning as understood by the men who drafted it – is very much a product of its time. First published in 1988, it offers a scathing analysis of such jurisprudence and its advocates at that time. Because of this, Levy frequently singles out in his text such contemporary figures as William Rehnquist, Robert Bork, and Edwin Meese for their promotion of an approach to constitutional interpretation that, as he demonstrates, was often grounded in only a superficial understanding of constitutional history and supported by cherry-picked quotes employed more to support personal interpretations than to discern accurately the intentions of the framers.
From many authors, such a book would be regarded today as an outdated artifact with only limited value. Yet the quality of Levy’s scholarship and the broadness of his focus allow his work to transcend such conclusions. In rebutting the contemporary supporters of originalism, he undertakes a through examination of their approach as applied to various aspects of the Constitution, showing the flaws inherent in it. Foremost among them is the underlying assumption that any such understanding is possible given the thin record available on which to base it. Not only are the materials documenting the arguments made during the drafting process fragmentary at best, but, as Levy notes, the most controversial parts of the Constitution were the ones about which the men who drafted it often wrote the least, giving little guidance as to what constituted their intentions and interpretations on some of the most frequently adjudicated issues.
Nor did the framers of the Constitution believe that such guidance was necessary. This he demonstrates by analyzing both the debates over various constitutional provisions and in his coverage of the development of judicial review. In both cases, he shows how the very people who drafted the Constitution never bothered in subsequent debates to reference their intentions at that time, but consistently sought instead to interpret the text entirely within the context of the issues at hand. He then applies this as well to various portions of the Bill of Rights, the chapters over which draw upon Levy’s extensive scholarship about them and the conclusions he drew in the process. Here he demonstrates not only the falsity of originalism in assessing their meaning, but the very inappropriateness of such an approach in the context of the various issues produced since then by a world which the Framers could scarcely imagine.
Levy follows this with a more trenchant criticism, which is that the judges from whom such determinations are required frequently fail at the task of historical analysis. This he demonstrates with a critical reading of several decisions by Supreme Court justices across the ideological spectrum, showing how in the instances cited their examples and the reasoning derived from them was often based on a faulty understanding or taken out of context. The reason for this gets to the heart of his argument, which is that the judges employing original intent were more interested in finding historical facts to fits their conclusions rather than to base their conclusions on the historical facts, an approach that demonstrates the fallacy of original intent in practice as well as in theory.
The criticisms Levy makes of originalism are enough to convince all but the most committed to this approach of its fallacy. Unfortunately, original intent is as prevalent today in right-wing circles as it was in Levy’s time. This gives his book a regrettable relevance for modern readers, who are still likely to see judges justifying their interpretations of the United States Constitution on a flawed and self-serving grasp of the past. Though we may still be far from Levy’s preferred use of our own modern understanding of the law as our guide to the meaning of the Constitution for us today, his cogent and learned analysis demonstrates why it is by far the preferable approach.
From many authors, such a book would be regarded today as an outdated artifact with only limited value. Yet the quality of Levy’s scholarship and the broadness of his focus allow his work to transcend such conclusions. In rebutting the contemporary supporters of originalism, he undertakes a through examination of their approach as applied to various aspects of the Constitution, showing the flaws inherent in it. Foremost among them is the underlying assumption that any such understanding is possible given the thin record available on which to base it. Not only are the materials documenting the arguments made during the drafting process fragmentary at best, but, as Levy notes, the most controversial parts of the Constitution were the ones about which the men who drafted it often wrote the least, giving little guidance as to what constituted their intentions and interpretations on some of the most frequently adjudicated issues.
Nor did the framers of the Constitution believe that such guidance was necessary. This he demonstrates by analyzing both the debates over various constitutional provisions and in his coverage of the development of judicial review. In both cases, he shows how the very people who drafted the Constitution never bothered in subsequent debates to reference their intentions at that time, but consistently sought instead to interpret the text entirely within the context of the issues at hand. He then applies this as well to various portions of the Bill of Rights, the chapters over which draw upon Levy’s extensive scholarship about them and the conclusions he drew in the process. Here he demonstrates not only the falsity of originalism in assessing their meaning, but the very inappropriateness of such an approach in the context of the various issues produced since then by a world which the Framers could scarcely imagine.
Levy follows this with a more trenchant criticism, which is that the judges from whom such determinations are required frequently fail at the task of historical analysis. This he demonstrates with a critical reading of several decisions by Supreme Court justices across the ideological spectrum, showing how in the instances cited their examples and the reasoning derived from them was often based on a faulty understanding or taken out of context. The reason for this gets to the heart of his argument, which is that the judges employing original intent were more interested in finding historical facts to fits their conclusions rather than to base their conclusions on the historical facts, an approach that demonstrates the fallacy of original intent in practice as well as in theory.
The criticisms Levy makes of originalism are enough to convince all but the most committed to this approach of its fallacy. Unfortunately, original intent is as prevalent today in right-wing circles as it was in Levy’s time. This gives his book a regrettable relevance for modern readers, who are still likely to see judges justifying their interpretations of the United States Constitution on a flawed and self-serving grasp of the past. Though we may still be far from Levy’s preferred use of our own modern understanding of the law as our guide to the meaning of the Constitution for us today, his cogent and learned analysis demonstrates why it is by far the preferable approach.
April 19, 2009
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.
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.
December 21, 2018
Original Intent and the Framers’ Constitution persuasively argues that the Constitution is a living document meant to adjust to the times and that the Original Intent of the Framers was to make the law flexible and able to meet demands of the period. Leonard W. Levy is an able guide in this quest to find out what their intent was and if it applies to the modern time of 1988 when this book was published.
September 1, 2013
A tough read. This book is an excellent resource for research and study. It is not an introductory text. Readers without a good background in period history will likely find it a plow. I recommend it for the accumulation of detail on the subject. In the past, I've found myself disagreeing with some of Levy's conclusions, but he absolutely bases his theses on facts and gives the reader every opportunity to review those facts.
June 11, 2012
Good rebuttal of the doctrine of original intent.
Displaying 1 - 5 of 5 reviews