Joel Jacobsen

Supreme Court justices love to claim they're fulfilling the intent of the framers, or the founders, for all that they're pretty vague about who those people were.  (See post 79.)  The underlying idea is derived from contract law.  Courts deciding contract disputes routinely say their task is to  "effectuate the parties' intent."   But then, they do so only on the prior assumption that the parties had a "meeting of the minds."   The concept of deciphering the intent of a document transfers from contract to constitutional law only on the assumption that the framers had such a meeting of the minds, some unitary purpose on which they (whoever they were) all agreed.

No professional historian would entertain that idea for a second, which leaves the field wide open to amateurs.  This fundamental implausibility is, however, not the deepest objection to the "original intent" school of constitutional interpretation (which, it must be said, goes back very far into the Supreme Court's early history).  There is no reason for a court to consider the intention of the framers - of a contract or of a constitution - when the document itself clear clearly addresses a given subject.  Intent comes into the equation only in two situations: when the text of the document isn't clear, and when the text doesn't address a given subject.

In the first situation, the reader might need to employ a little imagination to figure out what the text is getting at.  After all, it must have meant something to the people who went to the trouble of writing it down.  Figuring out a logical purpose for its inclusion is a good place to start. 

But the second situation is altogether different.  If the particular subject isn't addressed by the text of the Constitution, then trying to figure out the intent of the people who wrote the text with regard to that subject is absurd.  How can anybody, godlike member of the American Pantheon or earthbound mortal, have any intent regarding something he didn't do?  It's rather like arguing about what Orwell would have thought about modern political developments.   Or like the old Wire song: "Would you like to say what that silence was meant to intend?"

The underlying assumption of the original intent school of constitutional interpretation is that the Constitution extends far beyond its text.  It's a technique - or, more accurately, an excuse - for guessing what the framers would have included in the Constitution, if only they had thought about it.  It's a conception of the Constitution not as a contract between the people and their government, but as an open-ended grant of power to the judiciary.

The original intent school of constitutional interpretation isn't a repudiation of the "living Constitution."  It's a rhetorical cover for it. 

In 1973, Justice Rehnquist, at the time the lonely conservative voice of the Supreme Court, resisted the "constitutionalization of the intricacies of the common law of evidence", then still an incomplete process.  By 2004, Justice Scalia complained only that the common law of evidence had been constitutionalized so inelegantly.  Making the preposterous boast - combining childish egotism with childlike naivete - that his new regime would lay to rest all uncertainty (see footnote 10), Scalia didn't hesitate to read the emanations coming from the Constitution's penumbra.  He was all in favor of the Supreme Court regulating the admissibility of evidence in state courts, so long as he got to write the regulations.

Crawford's combination of grandiose claims, thin sourcing and unsophisticated narrative would have earned Scalia a low grade in any undergraduate  history seminar, and maybe even a private chat with his advisor about the advisability of switching majors.  But its faux-history serves the purpose of making his improvised Constitution appear to rest on firmer foundations than William O. Douglas's.  (See post 30.)  

Scalia is in complete agreement with Douglas on the key point, however: the Constitution grants the Supreme Court authority to regulate every aspect of Americans' relationship to their government.  If the text of the Constitution doesn't address a particular issue, then the justices must fill the gap by reading the document's aura or channeling the framers, depending on the individual justice's psyhic gift.  The important point is that democracy is kept in check by the guiding hand of Great Men.