In the December I986 Perspectives’ “Viewpoints” section, Wilcomb Washburn raised an important question: Could the Constitution be definitively interpreted if the framers’ intent were known. Dr. Washburn suggests that Justice William Brennan has insulted historians when he says that such a view is “arrogance cloaked as humility.” Dr. Washburn takes further umbrage at Brennan’s belittling of the relevance of historical evidence to constitutional interpretation.
The underlying fear operating here is that if judges are liberated from studying the framers’ intent they will be free to read the Constitution according to “evolving standards” of their own. Placed in the context of late twentieth century ideas about knowledge, those “evolving standards” might better be described as our contemporary understanding of the Constitution. I would argue that judges are helpless to do otherwise.
A more interesting and neglected question is whether the drafters of the Constitution meant to give a privileged position to the framers’ intent. There is no evidence to suggest that they did and much to show that they did not. In the first challenge to the constitutionality of a law, i.e. the incorporation of the Bank of the United States, Alexander Hamilton, George Washington, Edmund Randolph, and James Madison, all delegates to the convention, failed to agree and in discussing the issue argued the case on its merits. When pressed on many occasions to reveal the framers’ intent during his long nineteenth-century political career, James Madison consistently demurred, refusing to publish his notes on the convention until after his death.
Still more to the point, the view of language expressed in Federalist 37 indicates a healthy skepticism about the possibility of uncovering the precise meaning of specific statements. Even God failed as a communicator, according to Madison, who wrote that when “the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated.”
Of course historians devote themselves to understanding documents of the past. Their ability to do so in no way deserves contempt. But their purposes are quite different from those of constitutional conservatives. Their goal is often to liberate the present from the past by revealing just how different the past was and hence how inappropriate its example. We have over the past 200 years developed a culture of constitutionalism that colors how we look at constitutional issues. It is within this culture, not from the drafting of the Constitution, that the framers’ intent became a substantive and rhetorical part of the US Constitution. Discussing the notion of the framers’ intent in this bicentennial year should help us better understand our political system; recognizing how our culture of constitutionalism implicates theories of knowledge should also help us appreciate the limits of historical evidence.
