To the Editor:
I have enjoyed and appreciated Wendy McElroy’s articles in the Ideas on Liberty for quite some time, but I must take issue with her fundamental premise in “Constitutional Intentions” (June 2000).
Let me quote the first paragraph in order to refer more clearly to it: “A question frequently arises in disputes about how to interpret the U.S. Constitution: What was the intention of those who framed the document? This question contains an invalid assumption. It assumes that those who drafted the Constitution at the 1787 convention and those involved in the subsequent debates were of one mind and intent.”
The balance of the article deals for the most part with the many minds and many intents of the many types and persuasions of people in the various colonies as to whether the Constitution, as drafted, should be ratified, and if ratified, what its effects would be. [It also deals] with the large amount of compromise involved in its development. But these things are not . . . germane to the questions, What is the meaning of the words in the various provisions of the Constitution, how should they be interpreted in practice, and how were these questions addressed at the time of the convention and ratification? These are the questions, I believe, in the minds of those who look to “the intention of those who framed the document.”
Those who look to original intent do not deny there was considerable and frequently passionate disagreement as to whether theConstitution, as written, should be ratified. Nor do they deny that both the content, and the specific wording to express that content, were the result of compromise upon compromise in the convention. They are also aware that there was very careful deliberation on the precise wording to be used to convey the ultimately decided-upon content.
But I think they would tend to hold that there was some significant degree of agreement among the people of the colonies as to the intended meanings of the words in the Constitution as hammered out in the convention, and that these meanings were clarified considerably in the subsequent debates, in the writings of people like “Publius” and others, in practice following ratification, and in court interpretations and legal commentaries in the early years of the Republic. [Seekers of original intent] therefore [believe] it is valid to consider what those common interpretations of the intended meanings of the provisions were at time of ratification and in the early years of the Republic. Because if we can change the meanings of words and provisions in our foundational documents at will as years pass, what have we to build upon but shifting sand?
I feel Ms. McElroy has not spoken in her article to this issue of commonly understood meanings of words and provisions in the Constitution at the time of development and ratification . . . .
She goes on to say, “Rather than search for any one interpretation . . . , it is productive to explore the compromises reflected in the document.” But the words and provisions of the Constitution are legal language, and legal language is, or at least should be, subject to precise, and at least some would hope, unchanging interpretation. The delegates understood it to be legal language and that it would be binding if ratified, and I for one believe, based on my study, that they sought carefully and deliberately (all the more so because of their divisions and suspicions) to use wordings which would not be subject to many interpretations. Ms. McElroy implies that it is fruitless to attempt to understand what was the commonly understood meaning of particular words and provisions in the Constitution to those who signed and those who debated and ratified it. But if that is the case, does it have, or has it ever had, any meaning at all except as a symbol, like the Statue of Liberty, which after all needs no words to convey its meaning?
—Paul C. Kautz
Wendy McElroy replies:
I would like to thank Mr. Kautz for his thoughtful response to my article “Constitutional Intentions.” I think our key difference is that he approaches the Constitution as a legal document and thus states “the words and provisions of the Constitution are legal language, and legal language is . . . subject to precise . . . unchanging interpretation.” I approach the Constitution as a political document under a constant debate that often introduces the intentions of the drafters and ratifiers as “evidence” to support a particular interpretation. For example some anti-gun advocates insist that the Second Amendment’s opening words—“A well regulated militia being necessary to the security of a free state . . .”—reveal an antiquated intention to preserve militias and should not be used to protect individual gun ownership. My purpose in the article was to suggest shifting the political discussion away from the original intention behind the Constitution’s words in order to focus on: (1) the principles they were meant to embody and (2) the political problems they sought to address.
I do not generally take a legalistic view of the Constitution, for a number of reasons. First, I am not a legal scholar. Second and perhaps more important, I do not consider the document to be legally binding on anyone. Lysander Spooner opens his work No Treason with the words, “The Constitution has no inherent authority . . . unless as a contract between man and man.” He observes thatthose who consented to the Constitution are dead and their agreement had “no natural power or right to make it obligatory upon their children.” Mr. Kautz is quite correct that the Constitution is a legal document in the sense that it was adopted and has been enforced by government, but this tells me nothing about whether it is inherently just or politically practical.
Third, I tend to emphasize principles rather than wording because, unless the principles are entrenched, the wording will protect very little. You might well respond that how principles are worded is inseparable from what they are, and this is a compelling point. With the Constitution, however, I believe the wording has been over-emphasized.
Fourth, from a political perspective, I have reservations about a precise legalistic interpretation of the Constitution. In some instances, I prefer absolute adherence to every syllable written; for example, the First Amendment—“Congress shall make no law. . . .” Yet the logic of this approach does not allow me to argue against aspects of the Constitution of which I am less fond.
In short, we have an interesting difference of approach. However, I think we are probably in accord on the main purpose of “Constitutional Intentions,” which was to draw attention away from the intentions of the Constitutional Convention and onto a more substantive matter—whether that matter is the wording or the principles.