Original Intent Makes a Great Foundation

The thrust of the article by Kirk C. Jenkins titled "Design Dilemma: Original Intent Analysis is Impossible and Must Be Discarded" (Forum, July 13) is that, because an original intention analysis is impossible, it must be discarded.

Contrary to Jenkins' assertion, analyzing and using the original intent of the Constitution is the only democratic, intellectually honest method of interpreting it. When the courts state that the Constitution does not reach a particular issue, the matter then rightly becomes a matter for the state Legislature. This is the ultimate in democracy. Each time the Supreme Court finds something in the Constitution that does not exist, such as a "privacy right" in Roe v. Wade or the Miranda warnings not required by the Fourth or Fifth amendments, the court substitutes its judgment for that of the people. These oligarchical actions are the height of arrogance.

Determining the original intent of the Founding Fathers is not troubling to Jenkins and other judicial activists not because it is impossible, but because it is undesirable. Judicial activism, by its very nature, dismisses the Founding Fathers as old white guys and substitutes current, judge-made interpretations of the Constitution. The real evil of the judicial activist approach is that the court is adrift without standards. Without rules, the court, as unelected officials, does what it pleases with no accountability. This is the antithesis of a representative democracy.

A function of all judges in interpreting a statute is to determine the intent of the Legislature. Presumably, then, the Founding Fathers were a "super" legislature and the Constitution a super statute. The Supreme Court should therefore be attempting to glean their original intent. Representative democracy demands no less.

The idea that Supreme Court decisions, not based on original intent, reflect public opinion lacks merit. Supreme Court justices are unelected, are not subject to political pressure and are accountable to no one. The revisionists use the court as a substitute for the only proper method of amending the Constitution, Article V. This article puts the people in control, clearly anathema to the liberal elitists who amend the Constitution by judicial activism.

One of the most egregious examples of judge-invented doctrine is that of incorporation, holding that the Due Process Clause applies some, but not all, of the Bill of Rights to the states. In doing so, the justices justified their conclusions with flowery phrases, holding that it was "essential to principles fundamental to due process" and "implicit in the principle of ordered liberty" at the "foundation of all our political and civil institutions," etc. But these are nothing more than judge-made aphorisms. In these cases, the justices ignored previous decisions that held clearly that the 14th Amendment Due Process Clause was not intended to apply the Bill of Rights to the states. Incorporation is the height of judicial legislation.

The 13th and 14th amendments were intended to elevate former slaves to the status of nonslaves and nothing more. Nothing written suggests anything about incorporating the Bill of Rights. Incorporation was just another liberal activist's attempt to subjugate the states and the people to an inferior position in comparison with the federal government. If it was desirable to have the states bound by the Bill of Rights, Article V would have been the appropriate route, not judicial activism.

The originalists do not advocate expansion of the federal government over the people. This position is assumed almost entirely by Jenkins and other revisionists of the Constitution. Moreover, Jenkins' statement that the court does its work properly when it allows society's attitudes to "illuminate its interpretations" belies the notion that the court is supposed to be independent of the political majority and must do only what is mandated by the Constitution.

The Supreme Court's frequent incursions into the revisionist camp and attempts to create a society in its own image have produced this patchwork of inconsistent, irreconcilable Supreme Court decisions. This chaos, this intellectual morass, was created precisely because many of the justices chose to ignore the original intent of the Founding Fathers.