Original Intent and the Framers' Constitution
Writing with the erudition of a scholar with some twenty books on the Constitution to his credit, and the exasperation of a historian who has suffered ignorance in high places long enough, Leonard W. Levy confronts the conservative chorus that has decried the so-called “activism” of the Supreme Court and called for a jurisprudence based on the “original intent” of the framers of the Constitution. Taking level aim at former attorney general Edwin Meese III, former U.S. Court of Appeals Judge Robert Bork, and especially Chief Justice William H. Rehnquist, Levy writes flatly: “Those who praise the conservatism of the Court of an earlier time and criticize the modern Court employ a double standard or do not know what they are talking about.” Appending nearly a hundred pages of footnotes and bibliography to demonstrate that he knows what he is talking about, Levy traces the judicial history of some of the most frequently litigated clauses in the Constitution to illustrate his thesis thatfrom the earliest years the Court has not felt bound by the Constitution. The Justices have freely gone beyond the text into the wild, blue heavenly yonder in search of extraconstitutional doctrines that would do the job when the Constitution seemed inadequate to the task.
One of the most flagrant activists was the revered Chief Justice John Marshall, who handed down a series of key decisions that stretched the new young Constitution as though it had been inscribed on elastic instead of paper. Marshall’s famous Marbury v. Madison holding of 1803, in which the Court for the first time declared an act of Congress unconstitutional and thereby established for itself the power of judicial review, was, in Levy’s phrase, “judicial activism run amok.” Marbury was a politically motivated decision, the result of a confrontation between the Federalist-dominated Court and the Republican administration of President Thomas Jefferson. In ruling unconstitutional Section 13 of the Judiciary Act of 1789, under which Marbury was demanding a writ of mandamus to force Secretary of State James Madison to deliver to him a commission as a District of Columbia justice of the peace, Marshall “grossly misinterpreted” the statute, Article III of the Constitution, and the nature of the writ itself. His calculated logic, however, enabled him to find that Section 13 violated Article III of the Constitution, which in turn allowed him to deny the writ without giving the impression of caving in to the Republican enemy. Both the Republican defendant, Madison, and the Federalist senator who drafted Section 13, Oliver Ellsworth, had been Framers of the Constitution; neither raised any issue of the original intent behind Article III then or six days later when the Court decided Stuart v. Laird according to rules of construction that would have sustained Section 13 if the justices had applied them to Marbury v. Madison. The irony of Marbury for those who demand a return to the supposedly nonactivist court of the eighteenth and nineteenth centuries is double: It was a decision not based on original intent, through which Marshall appropriated for the Court a function not specified by original intent either. There is no explicit provision for judicial review in the Constitution; as Levy bluntly phrases it, “To the extent that national judicial review rests on Marbury it rests on rubbish.”
Politics and public policy, decently couched whenever possible in reassuring constitutional language, are more often than not the basis of Supreme Court decisions, Levy maintains, and always have been. “Original intent” is simply a code phrase by which the political Right articulates its desire to substitute conservative judicial activism—one that disallows Miranda warnings to arrestees and forbids abortion while it upholds the death penalty and nonpreferential aid to religion—for the liberal activism of the Warren and Burger courts. Conservatives cry “original intent” on decisions with which they disagree but keep noticeably silent about the numerous infractions of the Constitution that they happen to sanction. They approve, for example, the significant historical expansion of the president’s role in foreign policy and...
(The entire section is 1744 words.)