What is the limitation of the original intent of the Constitution?

Answer 1

The Constitution, regardless of the differences of the framers, sets up a government controlled by elites. Senators were chosen by state legislators, not the voters. Presidents were chosen by electors chosen by state legislators. Justices to the court were chosen by Presidents, and confirmed by Senators. Clearly, the intent of the Constitution was to limit the vox populi in national policy formation and execution. Justices who embrace the doctrine of original intent must, if they are to be consistent, object to any expression of popular will in national matters which does not emanate from state governments (which are popularly elected).

Conversely, the Constitution provides a mechanism for evolution: amendment. Permitting--no, laying out the procedure for--amendment to the Constitution is clearly part of the intention of the framers. If that is so, they can not be construed as men who wished to impose their views of public policy, private behavior, or collective morality. Thus, the original intent of the framers (if we are to seek that in the decisions of the court) was to have no specific imprint on the future, other than permitting change.

As we can see, original intent (while commonly implying an adherence to prior models of public policy and private behavior, and collective morality) can not reasonably be used other than to rationalize changes in legal proceedings that are adapted to the changing needs of each succeeding era of history.

Perhaps the Dred Scott decision best exemplifies why original intent is a misguided tool for selecting justices to the court, or as a guide to framing court decisions by justices on the court. In that decision the court used 18th century compromises on slavery as a guide to deciding what to do in the 19th century. That decision made compromise on the extension of slavery into the territories impossible (by making individual property rights superior to the collective rights of society), and eventually led to the fracture of the union. It rested on the sanctity of a compromise phrase in the Constitution that defined slaves as three-fifths of a person for the purposes of establishing representation in the House of Representatives. As three-fifths of a person, they had no rights--including the right to enter a suit into a court of law to determine their own status.