2010/10/31

Lawgiver anticipations

One of the things I find misleading about discussions of constitutional interpretation in the Founding Era, particularly by "federalists" and "anti-federalists", is the tendency to depict the differences as differences in the ways they understood the terms of the Constitution, and therefore as grounds for arguing that there was no common understanding that can provide a basis for interpretation of original meaning today. However, in reading the ratification debates I find a high level of common understanding, but disagreement about how the terms of the Constitution would be construed by future generations. Most of the fears of misconstruction were not directed at others in their own generation, but at those who would succeed them. Whatever else may be said about the Founders, they did take a long-term view, and they did not use the term "posterity" lightly. They knew that the crucible of revolution that united them in understanding would not continue to unite their children or future immigrants. They were very aware of how clever lawyers can twist language to serve their cases. The example of the ancient sophists loomed large in their expectations.

This can be most clearly seen in the demands for amendments in the ratification conventions, that let to the Bill of Rights. Except for the "Twenty Dollar Rule" they added no positive content that was not implicit in the original Constitution. They were only clarifications. Except for the enforcement clauses, even the Reconstruction Amendments may be considered no more than clarifications of the original Constitution, or at least of the clear implications of its language, but made necessary by misinterpretations of that language by a series of court decisions. They thus recognized that amendments might become the only practical means to return to original understanding after court precedents departed from it.

The principles of constitutional design, like the principles of statutory or contractual design, are largely a matter of trying to anticipate future contingencies and future misunderstandings, within the constraints of trying to maintain clarity and brevity in the writing. To understand lawgivers one must seek their anticipations.

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