1. Intentionalism & Judicial Power Objections to Intentionalism Thayer’s Rule & Indeterminacy Case Studies

2. Some Objections to Intentionalism Historical records are incomplete and unreliable. The identification problem: whose intentions count? Authors? Framers? Ratifiers? All voters, citizens? The summation problem: what to do when a disparate set of intentions composed the majority?

3. More Objections Level of generality problem: Conflicting intentions can co-exist (even in the same mind), when they occur at different levels of generality. The "publicity" argument. The law must be public, accessible to all. It is the public text, and not private intentions, that can be established as law.

4. Still More Objections “Dead hand of the past" argument. The world of the Framers is "dead and gone". What gives a prior generation the right to govern us? Moreover, the constitutional convention and state conventions were not selected in a very representative manner: women, slaves, and the poor were excluded.

5. Intentionalist Replies We have to do the best we can as historians. For most intentionalists, it is the intentions of the ratifiers that count. Courts must find a common denominator (shared by a majority of ratifiers), or must choose from a range of politically significant intentions.

6. Replies, cont. There are a variety of answers to the "level of generality" problem. Originalists (like Rehnquist or Bork) insist on finding the level of generality that the ratifiers intended to make authoritative. In most cases, the framers effectively communicate their intentions. It is the job of the courts, acting as historians, to make these intentions publicly known.

7. Replies, cont. Democracy means government by "the people", where the People are more than a mere sum of individuals. The People, of which we are now part, persists over many generations. The past is not dead, but lives on in us. This argument (unrepresentative nature of the Founders) proves too much. If successful, it would invalidate the Constitution itself, not just intentionalism.

8. Is Intentionalism Self- Refuting? Must the intentionalists claim that intentionalism itself (as an interpretive doctrine) was part of the consititutional intentions of the framers or ratifiers? The Framers explicitly rejected the idea that the intentions of the Framers were relevant to interpreting the Constitution: Madison.

9. For the most part, the Framers endorsed a traditional, textualist reading of the Constitution C. J. Marshall: "The intention of the instrument must prevail... this intention must be collected from its words." Hamilton: "The intention is to be found in the instrument itself, according to the usual and established rules of construction." [Congressional debate over national bank.]

10. Text, not Intentions Madison: "The sense of that body [the Constitutional Convention] could never be regarded as the oracular guide in expounding the Constitution...life and vitality were breathed into it by the several State Conventions." [Debate on Jay's Treaty, 1796] The "true meaning" of the Constitution is that "understood by the Nation at the time of its ratification." [Letter to J. G. Jackson, 27 Dec. 1821]

11. Common-law Background No common law cases of judges going to extra-textual sources of information about the authors' intentions. Blackstone -- no mention of such recourse.

12. Possible Intentionalist Responses It is the substantive intentions of the Framers concerning specific provisions that matter, not their opinions concerning how the Constitution ought to be interpreted. Some of the Framers did agree that the intentions of the ratifiers (state conventions) were authoritative.

13. Intentions of Ratifiers Thomas Jefferson: "On every question of Constitutional Construction, [we should] carry ourselves back to the time when the constitution was adopted, recollect the spirit manifested in the debate, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." [Letter to Justice William Johnson, June 12, 1821]

14. Chief Justice Marshall The great duty of a judge who construes an instrument, is to fit the intention of its maker." McCulloch v. Maryland. In Barron v. Baltimore (1833), Marshall appeals to the broad design of the constitution (federalism), and to the public context of the passage of the Bill of Rights.

15. The Open Texture Problem Both textualists and intentionalists face similar problems concerning phrases with open texture, as well as the interpretation of technical stock phrases. We can distinguish between narrow and broad versions of intentionalism.

16. Varieties of Intentionalists Narrow Intentionalists: jurists must follow the authors’ specific intentions for each provision of the Constitution. Broad Intentionalists: jurists are free to follow very broad, general intentions of the original authors, and ignore more specific, concrete ones.

17. The Semantic Intentions of the Framers & Ratifiers Did the Founders intend for future generations to be bound by their concrete conceptions, or only by their general concepts? Most Founders were moral realists, who believed that there is a mind- transcendent truth concerning what is just, reasonable, cruel, etc.

18. Where there is Indeterminacy, Who Decides? Thayer's Principle: named for legal theorist who published influential article in Harvard Law Review in 1893. When in doubt, the Congress should decide. The courts should not hold an act of one of the political branches invalid "unless its violation of the constitution is, in their judgment, clear, complete and unmistakable".

19. Different Versions The Courts should defer to the U. S. Congress, but not to the States. The Courts should defer both to the U. S. Congress and to the States. If State law and Federal law are in conflict: –(a) The Courts should give preference to federal law. –(b) The Courts should give preference to State law. –(c) Thayer's rule doesn't apply

20. Thayer and Indeterminacy Thayer's Principle depends on the presupposition that there are indeterminacies in the law. Some, such as Ronald Dworkin, deny this. Principles of natural law or universal political morality fill in the apparent gaps left by open-textured phrases or inconsistent intentions.

21. Arguments for Thayer’s rule Neutral principles & value skepticism Argument from Separation of Powers Argument from Democracy

22. Attitudes toward Thayer’s Rule Deferentialist: where there is indeterminacy, the courts must defer to the decisions of the political branches. Assertivist: where there is indeterminacy, it is the job of the courts, and not the political branches, to give the Constitution concrete meaning.

23. Possible Combinations

24. Case Studies Due Process Incorporation of the Bill of Rights in the 14th Amendment

25. “Due Process” in the 5th and 14th Amendment Phrase dates back to reissue of the Magna Carta in 1354: no freeman should be imprisoned, banished or dispossessed "except by the lawful judgement of his peers or by due process of law."

26. Common-law Meaning Commentators on common law (Coke) identify due process as "indictment or presentment of good and lawful men, and trial and conviction in consequence." Cited by Hamilton. Hamilton: "The words 'due process' have a precise technical import, and are only applicable to the proceedings of the courts of justice; they can never be referred to an act of the legislature." [Ratification debate in NY Assembly, 1787]

27. Expansion during 19th C. Murray v. Hoboken (1856): "due process" used to invalidate a state statute altering rules of common-law precedent. The Dred Scott decision (1857): first use of "due process" clause to declare a federal act unconstitutional.

28. Chief Justice Taney "An act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law."

29. Lochner v. New York (1905) Court struck down a NY law that limited (to 10) the number of hours a bakery worker could work in one day. The law deprived bakery employers o liberty without "due process of law."

30. The Absorption/Incorporation of the Bill of Rights In Palko v. Connecticut (1937), J. Cardozo argued that certain rights are "so rooted in the tradition and conscience of our people as to be ranked as fundamental", "found to be implied in the concept of ordered liberty." These fundamental rights, but not all of the Bill of Rights, were valid against the states through the 14th Amendment.

31. United States v. Carolene Products Co. (1938) Certain civil liberties were given a "preferred position" over other liberties (such as economic ones) This marked the end of the laissez-faire Lochner era.

32. J. Black and Incorporation In 1947 (long dissent in Adamson v. California), J. Black argued that the original intent of the 14th amendment was that it incorporated all of the protections of the Bill of Rights, and applied them to the states. Black relied heavily on statements by one Congressman, Bingham.

33. Historians Critical of Black Historians Charles Fairman (Stanford Law Review, 1949) and Raoul Berger (Government by Judiciary, 1977) have documented that Bingham's views were eccentric and inconsistent.

34. Unavoidable Trade-off When rights are interpreted narrowly (e.g., by reference to technical usage in established common law), they can be guaranteed absolutely. When they are interpreted broadly, they create only presumptions, which must be balanced or weighed against other state interests.