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Original Intent and Popular
Government: A Madisonian Perspective |
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Abstract:
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Original Intent and Popular Government: A Madisonian
Perspective
Russell L. Hanson
Department of Political Science
Indiana University Bloomington
In this paper I challenge the doctrine of “original intent,” which
holds that Constitutional questions of the day ought to be resolved in
accordance with the Founding Fathers’ intent. The two leading exponents
of the Constitution, Alexander Hamilton and James Madison never
intended that future generations were bound by the Founders’ intent.
Both recognized the political independence of each generation, and both
struggled to accommodate that independence without subjecting the
Constitution to frequent and partisan changes. Toward that end, each
developed a view of Constitutional
meaning and its production that was politically dynamic. Thus, there is
no basis in these Founders’ intent for relying on their specific
interpretation of the Constitution, canonized as the original
formulation.
I begin with a review of arguments in favor of interpreting the
Constitution in terms of the Founders’ intent, and the corresponding
reliance on the Federalist Papers for guidance on the meaning of
important clauses in the Constitution. I then consider two objections
to this approach: one rejects the relevance of the Founders’ intent to
our present circumstances, the other stresses the difficulty or even
impossibility of ascertaining the Founders’ intent, given the diversity
of Federalist opinions. Thus Hamilton and Madison famously disagreed on
the Founders’ intent, with Hamilton defending a broad construction of
Constitutional authorizations of federal power, and Madison insisting
on strict construction.
I recognize the conflicting intentions of these two Founders, but claim
they agreed on one key point: neither felt that the Founders’ intent
ought to bind future generations. The claim is easy to substantiate
where Hamilton is concerned, given his advocacy of broad construction.
Madison’s devotion to strict construction poses a challenge, since it
seems to hark back to the Founders’ intent. However, Madison explicitly
rejected the idea that the authors of the proposed Constitution could
prescribe its meaning. For Madison, the Constitution’s meaning was not
fixed or stabilized until ratification was secured, i.e. until a public
understanding had been reached. Strict construction was necessary
precisely because this original understanding had been ratified by the
collective authors of constitutional government.
Importantly, the understanding achieved via the ratification process
included interpretations of the Constitution put forward by the
Federalists and endorsed in state conventions. It also included
commitments to add a bill of rights, which was not part of the
Founders’ intent, and indeed which was specifically rejected by the
Philadelphia convention. Madison took this commitment seriously and
pushed for the adoption of a bill of rights over the objection of his
own party in the first Congress, deferring to the “will of the people”
as ratified in the original understanding.
Madison certainly did not think the original understanding was
immutable. His use of the amendment process shows how the parameters of
Constitutional interpretation might be altered, i.e. how the basis for
strict construction might be changed. Like the Constitution, amendments
must be ratified, and the act of ratification fixes the meaning of key
clauses or phrases in the governing document. (Here I mean “fixes” in
two senses of the term: fixes in the sense of solving a constitutional
problem, and also fixes in the sense of stabilizing the meaning of the
Constitution by placing the weight of an extraordinary majority behind
a particular interpretation of the Constitution.)
Madison’s emphasis on ratification demonstrates his commitment to
popular government. He certainly feared majorities of the moment, and
did his best to obstruct majority factions (by which he meant
majorities who disregarded the interests of minorities or the public
good). However, Madison gave extraordinary majorities, formed in the
process of ratification, the important political function of settling
the meaning of the Constitution. Successive understandings shared by
successive majorities reaching extraordinary proportions, represent the
“will of the people” evolving in time. |
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Association:
Name: The Midwest Political Science Association
URL: http://www.indiana.edu/~mpsa/
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Citation:
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MLA Citation:
| Hanson, Russell. "Original Intent and Popular
Government: A Madisonian Perspective" Paper presented at the annual meeting of the The Midwest Political Science Association, Palmer House Hilton, Chicago, Illinois, Apr 15, 2004 <Not Available>. 2009-05-26 <http://www.allacademic.com/meta/p82814_index.html> |
APA Citation:
| Hanson, R. , 2004-04-15 "Original Intent and Popular
Government: A Madisonian Perspective" Paper presented at the annual meeting of the The Midwest Political Science Association, Palmer House Hilton, Chicago, Illinois <Not Available>. 2009-05-26 from http://www.allacademic.com/meta/p82814_index.html |
Publication Type: Conference Paper/Unpublished Manuscript
Review Method: Peer Reviewed
Abstract: Original Intent and Popular Government: A Madisonian
Perspective
Russell L. Hanson
Department of Political Science
Indiana University Bloomington
In this paper I challenge the doctrine of “original intent,” which
holds that Constitutional questions of the day ought to be resolved in
accordance with the Founding Fathers’ intent. The two leading exponents
of the Constitution, Alexander Hamilton and James Madison never
intended that future generations were bound by the Founders’ intent.
Both recognized the political independence of each generation, and both
struggled to accommodate that independence without subjecting the
Constitution to frequent and partisan changes. Toward that end, each
developed a view of Constitutional
meaning and its production that was politically dynamic. Thus, there is
no basis in these Founders’ intent for relying on their specific
interpretation of the Constitution, canonized as the original
formulation.
I begin with a review of arguments in favor of interpreting the
Constitution in terms of the Founders’ intent, and the corresponding
reliance on the Federalist Papers for guidance on the meaning of
important clauses in the Constitution. I then consider two objections
to this approach: one rejects the relevance of the Founders’ intent to
our present circumstances, the other stresses the difficulty or even
impossibility of ascertaining the Founders’ intent, given the diversity
of Federalist opinions. Thus Hamilton and Madison famously disagreed on
the Founders’ intent, with Hamilton defending a broad construction of
Constitutional authorizations of federal power, and Madison insisting
on strict construction.
I recognize the conflicting intentions of these two Founders, but claim
they agreed on one key point: neither felt that the Founders’ intent
ought to bind future generations. The claim is easy to substantiate
where Hamilton is concerned, given his advocacy of broad construction.
Madison’s devotion to strict construction poses a challenge, since it
seems to hark back to the Founders’ intent. However, Madison explicitly
rejected the idea that the authors of the proposed Constitution could
prescribe its meaning. For Madison, the Constitution’s meaning was not
fixed or stabilized until ratification was secured, i.e. until a public
understanding had been reached. Strict construction was necessary
precisely because this original understanding had been ratified by the
collective authors of constitutional government.
Importantly, the understanding achieved via the ratification process
included interpretations of the Constitution put forward by the
Federalists and endorsed in state conventions. It also included
commitments to add a bill of rights, which was not part of the
Founders’ intent, and indeed which was specifically rejected by the
Philadelphia convention. Madison took this commitment seriously and
pushed for the adoption of a bill of rights over the objection of his
own party in the first Congress, deferring to the “will of the people”
as ratified in the original understanding.
Madison certainly did not think the original understanding was
immutable. His use of the amendment process shows how the parameters of
Constitutional interpretation might be altered, i.e. how the basis for
strict construction might be changed. Like the Constitution, amendments
must be ratified, and the act of ratification fixes the meaning of key
clauses or phrases in the governing document. (Here I mean “fixes” in
two senses of the term: fixes in the sense of solving a constitutional
problem, and also fixes in the sense of stabilizing the meaning of the
Constitution by placing the weight of an extraordinary majority behind
a particular interpretation of the Constitution.)
Madison’s emphasis on ratification demonstrates his commitment to
popular government. He certainly feared majorities of the moment, and
did his best to obstruct majority factions (by which he meant
majorities who disregarded the interests of minorities or the public
good). However, Madison gave extraordinary majorities, formed in the
process of ratification, the important political function of settling
the meaning of the Constitution. Successive understandings shared by
successive majorities reaching extraordinary proportions, represent the
“will of the people” evolving in time. |
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