To what extent is the interpretation of the Constitution dependent on the intentions of founders? Add your comments below.
There is a significant debate over the place of the founder's intent (originalism) in the interpretation of the Constitution and thus in deciding critical issues of social policy such as the death penalty, right to end life, abortion, same-sex marriage and almost any other contested issue of social policy. An important contribution to this debate is provided by Scott Douglas Gerber's To Secure These Rights. (New York University Press, 1995) a book which I just read but which has been out for some time.
The book is a good read and brings together a lot of different theoretical concerns related to natural rights, the interepretation of the Constitution and social policy issues. I recommend it to anyone who wants an overview of the issues and an introduction to what is at stake.
What is nice about Gerber's argument is that he offers an alternative theory of originalism that does not necessarily end up as conservatism social policy. Originalism is the theory that the founder's intent should be the limiting factor in understanding and interpreting the constitution. That theory has been used by Conservative justices and constitutional interpreters to essentially contest what were perceived to be abuses by more liberal courts in their interpretation of the Constitution. By reverting to the founder's intent, conservative justices and theorists argue, Americans can prevent the abuse of the Constitution and the judicial activism that makes the court the vehicle for legislation, which it was never intended to be.
Gerber's book is an interesting response to this argument because it comes at the problem from a new angle. Instead of arguing the way more liberal interpreters have, that the Constitution was not supposed to be limited to the founder's intent, Gerber argues that conclusions from originalism are not necessarily strictly conservative, as others have constructed them. Thus Gerber embraces originalism as a methodology but arrives at different, not necessarily conservative conclusions. Whether one buys originalism as a judicial philosophy or Gerber's conclusions about what the founders' intended is worth arguing about. But even if one disagrees with his conclusions, his contribution is important precisely because it constructs a version of originalism that is not harnessed to a conservative agenda. Originalism thus can also arrive at some "liberal" conclusions. This in itself makes it an important contribution to the debate.
Gerber builds his understanding of the founder's intent on the claim that natural rights philosophy is the theoretical foundation of the founders' philosophy. This is not an uncontroversial claim as we shall see. To make that argument, Gerber rests his case on a number of secondary claims: 1) that the Declaration of Independence reflected the natural rights philosophy of John Locke, 2) that the Declaration's philosophy of government should control the understanding of the founders' intent in the Constitution and Bill of Rights and that 3) John Locke's philsophy of natural rights can help adjudicate specific issues of social policy such as the death penalty, right to terminate life, abortion, affirmative action, and other contested social policy issues. As we shall see, each of these claims can in fact be contested, which itself raises some interesting questions about how history, political philosophy and constitutional interpretation should interact.
Setting aside those issues for a moment, however, Gerber's contribution is interesting and significant precisely because it argues for originalism but does not end up with what looks like a traditional conservative social agenda or policy conclusions. This is arguably the major contribution of the book, though one might conclude it is important for reasons other than what Gerber himself argues.
Specifically, one might argue that Gerber's arguments shows that originalism can be read in many different ways. Gerber argues that this in fact is one of the problems of original intent theory, the fact that different interpreters arrive at contradictory understandings of the Constitution's and the Bill of Rights original intent. Gerber's worries that the personal philosophical and personal commitments of interpreters can lead them to put whatever construction they like on the original intent. By contrast, his version of original intent-one that puts the core emphasis on natural rights philosophy-puts an end to that problem of original intent interpretation. It is no longer unconstrained.
To summarize a more complex argument, Gerber argues that the Declaration of Independence represents the founders' understanding of government and rights and therefore should provide the interpretive framework for understanding the Constitution. Since that natural rights philosophy rests on John Locke's Second Treatise of Government, Locke's work and natural rights philosophy should be the context used to interpret the Constitution. Thus when the Constitution is not clear we can turn to Locke. Appealing to Locke's philosophy and writings, Gerber argues, puts an end to the subjectivity of the interpreter trying to ascertain the founder's intent. Now there is a context in which to understand and limit what intent of the Constitution can mean.
While one can seriously applaud Gerber for offering a liberal understanding of original intent, one can reach a quite different conclusion. Instead of being persuaded that natural rights and the Declaration resolve the ambiguity of what original intent means, one can conclude the opposite: that Gerber has in fact shown that original intent is impossible to pin down conclusively and thus rests on difficult problems of historicism and historical method that plague historians as well as problematic assumptions about the coherence and clarity of "original intent." In other words, by contesting the conservative reading of original intent and suggesting an alternative one based on natural rights philosophy, Gerber arguably proves that original intent can be interpreted in a wide variety of ways and that building a context of interpretation is precisely what is difficult and problematic.
Gerber himself is not unaware of the fact that many interpreters of the Constitution believe that the Constitution was intended to evolve in response to changing circumstances. He rejects their approach as being too subjective and lacking a framework that prevents the Constitution from being whatever anyone wants it to be. And yet, one can argue that the approach that seeks original intent, despite its goal of being more objective, actually isn't.
Gerber does not really engage this quesiton seriously and thus leaves open a major question for his approach. For it is arguable, and I would say true, that the very act of determining original intent is itself exceedingly problematic. The problem is precisely the question that historians face all the time: how to determine the appropriate context for determining a document's meaning. While Gerber has given one possible rendition of the founder's original intent (and a useful one at that) he has in fact come down and taken a position on a host of interpretative historical questions that are up for grabs. To cite a few examples, it is at least open to question whether the Declaration is best described as a document that "embraces natural rights" and is "Lockean". Gerber is aware of the debate among historians of the American Revolution over how central Locke's philsophy was to the ideas leading to the revolution. There is a debate in fact between those favoring a "republican synthesis" (Woods, Pocock, Bailyn, Dunn) and those who argue for a heavy Lockean influence (Dworetz, Hamowy, Zuckert). Gerber takes the side of those who favor the Lockean influence thesis. Furthermore, Gerber dismisses the accounts of the Declaration that downplays the Lockean themes. While interpretations such as that of Gary Wills, have been subjected to substantial critique by Hamowy and others, and while there has been a reemphasis on Locke's influence on pre-revolutionary thinkers by Zuckert (Natural Rights and New Republicanism) Dworetz (Unvarished Doctrine) and others, there is still a good case to be made that the Declaration is itself ambiguous about natural rights and that there was ambivalence about natural rights among American writers in the decade up to the Declaration.(see for example my own Schwartz, Natural Rights and the Declaration of Independence, Part IV) Moreover, there is evidence that Jefferson himself had an alternative theory of rights than the classical Lockean natural rights and that Declaration itself equivocates on key aspects of American rights. If this reading is correct or valid, then it hardly provides an solid foundation on which to construct a theory of the Constitution.
But even if one still concludes that the Declaration does "embrace" natural rights philosophy, there is still another interpretive leap to be made. Gerber argues that the Declaration (and by extension natural rights philosophy) is the key interpretive context for understanding the Constitution and the Bill of Rights. But those documents interestingly enough do not articulate a philosophy of government or explicitly embrace a natural rights philosophy. There is thus an interpretive decision that the Declaration's explicit philosophy of government is the best summary of the founders intent. But the Declaration was written in 1776, as an explanation to the world justifying the colonies' decision, to not only go to war (which had arleady started) but to declare independence. The Constitution was ratified in 1787 (more than 10 years later) after the states had themselves created constitutions, the Articles of Confederation had been ratified and perceived inadequate, and the Constitutional convention and debate on the Federal constitution had occurred. This lapse of ten years is a highly significant period in which "the framers" not only changed to some extent (Jefferson wrote the Declaration but was not present for the Constitution, and James Madison and Alexander Hamiliton were not present for the Declaration but were present for the Constitutional debate and played the formative role in the Federalist papers.) Gerber is not unaware of this problem and tries to address it by showing that state constitutions and lawmaking and debates during the convention continued to turn to the Declaration's language and ideas.
Its beyond the scope of this commentary to get into this issue in detail but another reading of the same period would suggest that in fact the founder's ideas had shifted significantly. While they were focused on their rights under Great Britain they had one set of views about rights and representation. But as they started to shift to the question of creating their own governments, both the state constitutions and then the Federal constitution, they realized that in fact the very question of what representation means is highly problematic. The debates over the State Constitutions, as well as the debates leading to the Federal Constitution on the relationship of state to federal power, reflect a dispute about what rights mean or should mean. In other words, they recognized that the implementation of right protection could take many different forms And the debate over whether the founders were "republican" or "lockean" partly reflects tha t the founders did not have a monolithic view of how rights should be applied in practice. The appeal to the Declaration moreover was an attempt to associate the authority of the past with the particular view of rights that was being proposed. Everyone wanted to claim they were protecting the rights "we fought for." But not all agreed on what those rights were. Thus on this interpretation, the Declaration did not really resolve the question of what natural rights mean and the subsequent debates emerged as the founders realized they didn't in fact all agree.
This reading of history would then suggest that the Declaration has less meaning for the interpretation of the Constitution than Gerber wants to give it. And it leads to another question that goes to the heart of Gerber's claim: even if we agree that "natural rights" is the philosophy that should frame our understanding of original intent, is the meaning of natural rights straightforward?
Gerber implies that in fact it is. Thus once he establishes that the natural rights is the framework in which we should interpret the Constitution he argues that the appeal to natural rights will resolve ambiguity about the founder's intent on specific issues. But this too is debatable.
As an example, Gerber argues that the death penalty should be permitted under a constitution that rests on natural rights. This is because Locke in his Second Treatise argued that an individual does forfeit the right to life if he or she takes the life of another (ie murder) and thus violating the foundational right of life at the heart of natural rights. Gerber also argues that there should be a "right to die" based on his reading of Locke. In his reading, Locke does permit suicide in some specific cases such as slavery where the hardship outweighs the value of life.
I would argue that Gerber's reading of natural rights is problematic for several reasons. To be begin with, he never examines the question of whether it makes sense to found the Constitution of this country on natural rights at all. Even if that were the founders intent to do so, it might be worthy of debating whether that was a good decision. And if it wasn't it raises some interesting questions about original intent. What if we didn't agree with the founders? Or what if their understanding of natural rights was flawed?
But apart from those interesting questions, it is at least reasonable to ask whether Locke's is the only reading of natural rights that one could find. To be sure, while Locke's interpretation of natural rights is one of the most important statements in the modern period, it is conceivable that a different reading of natural rights would be possible. Indeed, there is a substantial debate in Lockean scholarship (see Zuckert's Launching Liberalism for a good summary) that notes how Locke had a significant gap in his theory. In the Second Treatise, Locke assumed that the law of nature was self-evident to all (a founding assumption of his natural rights argument) but in his Essay Concerning Human Understanding and elsewhere he acknowledges that the discovery of natural law may not be self-evident. If the discovery of natural law is problematic, then even on Locke's own interpretation it would make sense to question whether his discernment of rights is the only one possible.
To complicate matters still further, even if we agree that Locke's interpretation of natural rights should be the framework in which to understand the Constitution, it is debatable we would all agree on what Locke meant or how Locke would have answered some specific questions. To cite two examples, Locke himself recognizes that people could be enslaved if they took the life of another. That is, a person who deserved the death penalty could opt for slavery instead. But our constitution through the amendment process has ruled slavery out as violating basic human rights. A return to Locke would mean that we should reopen the slavery question and make slavery a legitimate option. (For a tongue and cheek statement of this view, see Schwartz, ""Liberty and the Public Good: Endorsing Suicide and Slavery as Part of a Free Society". Or to cite another example, Gerber argues that abortion should be forbidden by natural rights which are designed to protect life. Yet the problem is we don't know when life starts. He writes in response to Lewis Lehrman "The Declaration and the Right to Life: One Leads Unmistakably from the Other" that "Lerrman asserts as an article of religious faith that life begins at conception. He fails to appreciate, however, that under the Constitution the question of when life beings is a scientific one, not a religious one, because the first amendment codifies the strict wall of spearation between church and state that was so fundamental the Founders, as well as to Locke."
I cite this example because it poses what I see as the fundamental dilemma in deciding what natural rights imply and what Locke meant. The protection of life in natural rights does not tell us when life starts. But the question of how we decide that question is precisely at issue and one might argue that most issues of social debate are precisely of this kind. I see no evidence in the Constitution that "science" should tell us when life starts (although I agree with Gerber that religion shouldn't tell us when life starts because of the separation of church and state). But Locke certainly didn't indicate which trimester life starts in, precisely because technology advances raise new questions that earlier views had not anticipated. Trying to use Locke to resolve our issues of social policy is like turning to Scripture to do the same. We have to extrapolate beyond where Locke or Scripture went and apply some paradigm of interpretation to get an answer. The question of how to extend Locke or natural rights in a Lockean fashion to particular issues thus throws open the very indeterminacy of meaning that Gerber is trying to lock down by appealing to natural rights.
In my view, many of the great questions under social debate are precisely of this sort. And on my reading of Locke, Locke understood that there would in fact be a majoritarian approach to resolving them. Indeed, Gerber completely ignores the central role that the social contract plays in Locke's philosophy. On Locke's account, individuals give up some of their natural rights to join society and benefit from social life. After that point, they adhere to majority decisions. As Locke put it in the Second Treatise:
For when any number of Men have, by the consent of every individual, made a Community, they have thereby made that Community one Body, with a Power to Act as one Body, which is only by the will and determination of the majority. For that which acts any Community, being only the consent of the individuals of it, and it being necessary to that which is one body to move one way; it is necessary the Body should move that way whither the greater force carries it, which is the consent of the majority, or else it is impossible it should act or continue one Body, one Community, which the consent of every individual that united into it, agreed that it should; and so every one is bound by that consent to be concluded by the majority (II 8, 96)
Thus any account of Locke's views and of natural rights still has to have a theory of what role the institutions of government have in deciding cases of ambiguity and in deciding what is in the hands of the majority. An appeal to natural rights therefore may not eliminate the ambiguity about original intent nor unambiguously decide controversial cases. A judicial system will still be needed to put an end to controvery over what natural rights do or should mean. And that means that it is institutions that resolve the ambiguity of meaning, not objective methods of discerning original intent.
In the end then Gerber's work is an outstanding contribution for contesting the view that original intent interpretations always end up as conservative social policy. But in trying to bound original intent within a natural rights Lockean philosophy, Gerber's analysis shows just how "constructive" is original intent. It depends on a rich historical analysis that builds up a historical interpretation (the Declaration is founded on natural rights, and the Declaration is relevant to the Constitution), as well as a particular reading of Locke and Locke's understanding of natural rights. In a free society in which representation matters surely these questions of history and interpretation, which can be contested, need mechanisms "to end the debate," as Thomas Paine put it in Common Sense. We are thus led back to institutions such as the court and legislature which ultimately have to step in and resolve the ambiguities of history and original intent, which cannot be ended simply by debate by intelligent people. Some other mechanisms that are agreed to by majorities have to end the debate which can't be resolved by reason alone.
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