The litmus test of "original intent"

By Robert Meyer

The rhetoric is heating up in an effort to discredit Supreme Court nominee John Roberts.

It is already getting so intense that NARAL, a national abortion rights group, was pressured to pull a factually misleading ad off the TV air waves, which presented Roberts as sympathetic toward fanatics who bomb abortion clinics. But as the line from a famous pop classic goes, "You ain't seen nothin' yet." The real fireworks commence when Congress returns from summer recess after Labor Day.

This hoopla is all based on a de facto litmus test set up by the liberal elements in the legislature. The test in flunked if you are opposed to abortion or have "deeply held personal beliefs," i.e., religious convictions, because this will impair the ability to judge impartially. Of course everyone has a set of deeply held personal beliefs that make objectivity difficult, so this is really conjuring up a false dilemma.

What many of these congressional liberals sitting on the Judiciary Committee are so afraid of is Roberts' stated judicial philosophy of "original intent." This is a belief that the Constitution must be interpreted according to the intent of the Framers when they drafted it. Liberals fear such a judicial template, because they require the administration of legal positivism and judicial fiat in order to institutionalize their agendas.

If there is to be any litmus test at all, it should be that any nominees to the Supreme Court must subscribe to the jurisprudence of Original Intent, regardless of individual personal beliefs. Why do I dare to say that? Well, that is what the Founders themselves said.

In his time, Thomas Jefferson issued a stern reminder to Justice William Johnson: "On every question of construction, carry ourselves back to a time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning can be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."

James Madison declared, "I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution..."

Justice James Wilson, one of six men who signed both the Constitution and Declaration of Independence, reasoned, "The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it."

Likewise, Justice Joseph Story, a great legal scholar in early America, claims: "The first and fundamental rule in the interpretation of all instruments is to construe them according to the sense of the terms and the intention of the parties."

No doubt some will protest, saying such a construction of the Constitution brings us back to a time when men eloquently expounded that all men were created equal, but then owned slaves themselves. But is that flawed judicial philosophy or a defect in the nature of man himself? Our framers readily understood that the Constitution was not penned by the hand of God, and that it might become archaic or inadequate in some area.

Therefore, a process to amend the Constitution when necessary, was inserted in Article V. George Washington, in his Farewell Address, declared that there is but one legitimate way to change the Constitution: "If, in the opinion of the people, the distribution or the modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed."

There are many positive aspects to "original intent." First of all, this approach acts as its own judicial restraint, by recognizing the role of the court under the constitutional separation of powers. Secondly, it ensures that there is a distinction between personal activism and constitutional necessity.

Judges can't just pop on their 3-D "enlightenment bifocals" and say they see emanations from the penumbra of the Constitution. Otherwise, what rights can't be invented from in between the lines?

Finally, it ensures that judges all use the same standard when issuing an opinion. Imagine playing tennis with a panel of judges disagreeing about what constitutes a ball being "out of bounds." Rulings would be arbitrary and chaotic.

Applying "original intent" is the only way to avoid proliferation America's contemporary judicial tyranny.

© Robert Meyer