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The Peculiar Persistence of Original Intent : ORIGINAL INTENT AND THE FRAMERS’ CONSTITUTION <i> by Leonard W. Levy (Macmillan: $19.95; 525 pp.; 0-02-918791-5) </i>

<i> USC law professor Stone's latest book is "Earth and Other Ethics" (Harper & Row)</i>

Across the world, hermeneutics, the art of drawing meaning from text, is serious business. Airplanes are hijacked, mosques besieged, rock-throwing youngsters raked with plastic bullets, all because somebody is sure he has got the right read on some ancient document.

The problem is inherent in authority. The authority, be it God or king or Congress, has to communicate. And someone has to divine the meaning--whether from ad hoc messages, such as entrails or earthquakes; from regular, holistic patterns, such as planetary motion; or, more modernly, in societies whose authorities find it easier to speak than to move mountains, from words.

In our own nation, the fundamental document, our secular scripture, is the Constitution. The chief interpreters, our high priesthood, are our Supreme Court justices. Our home-grown fundamentalist wing, for which derailed Supreme Court nominee Robert Bork has been the most celebrated spokesperson, holds that, where ascertainable, the “original intent” of the Constitution’s enactors ought to control.

In “Original Intent and the Framers’ Constitution,” historian Leonard W. Levy, a leading authority on the minds and milieu of the Framers, has produced a well-documented debunking of the originalist position. Levy demonstrates that notwithstanding the repeated lip service courts pay to the Framers’ “original intent,” judges have been generally indifferent to the fragmentary, often conflicting historical evidence of what that intent actually was. Levy twits that if the history really were so important, Congress should create an Office of Historian to the Supreme Court, rather than piece out partisan “histories” from the briefs of us squabbling lawyers.

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Some of Levy’s potential audience may be turned off at the prospect of yet one more public whipping of the naive claim that judges do nothing more than carry out the “intent” (or “letter”) of the lawmaker.

But it would be a mistake to devalue this facet of Levy’s book on the view that it is old hat. Even readers familiar with the critical literature, and who think themselves well-versed on their constitutional history, will be rewarded by Levy’s meticulous and entertaining exposition of the court’s continuous meanderings.

Levy is persuasive that the tampering with original understanding has reached into the very structure of government. The most distinguishing and awesome feature of our modern judiciary, the power of federal courts to overrule acts of Congress, was sprung on us by Chief Justice John Marshall, our first-seated “rampaging activist,” because he--not the drafters--thought good government required it.

Perhaps even more arresting is Levy’s implication that the Framers--Marshall’s contemporaries--probably would not have objected that their own intentions went unconsulted. Levy claims that there is “no evidence, not a shred . . . to show that the Framers meant, wanted, or expected future generations to construe the Constitution as they . . . had.”

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But if the Framers did not intend their intentions to bind us, and if the courts have, in fact, played as fast and loose with intent as Levy says they have, then that only underscores the normative question that animated the Bork hearings: Why not just scuttle the pretense?

The mystery is deepened because even Levy, for all his disparagement of original intent talk, stops short of renouncing it entirely. On the other hand, he proclaims the text to be “the most important evidence of original intent,” which must prevail “when it surely embodies a broader principle than can be found in the minds or purposes of the Framers.” But, why? Both positions deserve some connection to a theory of government.

Obviously, this opens up a huge and treacherous area. I can do little more than suggest that there is more to be said for original intent than Levy lets on.

To begin with, trying to figure out what the speaker meant is the commonly accepted method for clarifying unclear messages in everyday life. Why not apply it to a constitutional communication, where solid evidence of intent is available?

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Second, many of the negative answers to that question are, on close examination, off the mark. Levy adopts the common criticism that “even if the Court could discover original intent, it would freeze the meaning of the Constitution as it was two centuries ago,” rendering it unsuitable “to serve for ages to come.”

This is not so. If the original understanding were to become too stultifying, we could escape the enactors’ grip by amending the Constitution (the way we enacted, then repealed Prohibition). Original intent does not imply inalterable dead-hand control.

Nor does one have to amend the document to avoid a frozen set of applications. It depends not only upon the texture of the intention in question, but on how intent is construed in general.

Take for illustration the copyright clause (Article I, Section 8) which gives protection, literally, only to “authors and inventors.” A literal interpretation, Levy points out, would deny protection to artists and sculptors, and to those producing all sorts of modern innovations, such as television, radio and computer programming. Levy thrusts: “Original intent analysis leads nowhere, because the records of the Convention show nothing, and the ratification debates do not assist either.”

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In rejoinder, a passage of Wittgenstein (from “Philosophical Investigations”) is instructive.

Someone says to me: “Show the children a game.” I teach them gaming with dice, and the other says, “I didn’t mean that sort of game.” Must the exclusion of the game of dice have come before his mind when he gave me the order?

I believe most lawyers would respond that teaching the children dice would not be faithful to the speaker’s intended meaning, even if the speaker did not have some sort of diceless mental picture “in mind,” originally. This is because lawyers are accustomed to constructing intent in all sorts of contexts, including contracts, wills, crimes, and legislative interpretation, and in none of them is the task imagined to focus on finding little pictures the speakers or writers were carrying around in their heads. Hence, whatever intent may mean to a historian, lawyers are skeptical about the whole business of pinning down what-the-speaker-actually-meant, and habituated to throw on a good gloss of what, in the social context, he or she or the reasonable person so situated should have meant.

This pragmatic, but structured concept of intent explains why lawyers are unembarrassed to speak of the “intent” of a collective body, such as a legislative assembly or constitutional convention, even though we know it was composed of many individual minds that differed. And it helps put in perspective, too, Levy’s complaint that “lawyers making a historical point will cite a Court opinion as proof, but no competent historian would do that.” Indeed; but the lawyer, no fool, is doing law--and using “intent” in a way that is closer to Wittgenstein’s.

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Finally, Levy acknowledges that he has made no effort to be systematic, but has chosen to focus provisions that he considers interesting, important, and frequently litigated--those that are therefore the most uncertain. Undeniably, a more balanced survey would turn up a whole slew of provisions, such as that the President must be 35 years of age, for which the intent and wording are so clear as to assure the continuing influence of the Founders.

Half of Levy’s response is indisputable: In the cases that do give trouble, no theory “will crank out decisions . . . so likely true or convincing that all the justices will agree.” But all too readily he goes beyond that, to suggest that original intent analysis is “meaningless,” “leads nowhere,” and does not even “give guides to decision.” Depending, again, upon how intent is conceived, those, the really crucial claims, are tougher to support.

But none of that changes the final verdict: We will all be better historians for Leonard Levy’s fine new book.


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