Late former President Richard Nixon, who was proven to be hostile to our constitutional principles, advocated "strict constructionism"; or the literal words of the document, as does the present president, George W. Bush. Oliver Wendell Holmes, probably the greatest Supreme Court judge in history, said judges need to be "loose constructionists." This article will consider both approaches.
CONSERVATIVES' ORIGINAL INTENT IF APPLIED
When we read the original words of Article I, Section 8, we see that Congress has the authority to "raise and support Armies" (paragraph 12) and to "provide and maintain a Navy" (paragraph 13) and for "calling forth the Militia (paragraph 15)." That's our national defense. Money for the "Armies" can not be for more than two years and the Militia can be called to national service only to "execute the Laws of the Union, suppress Insurrections and repel Invasions." Article II, Section 2, says the "President shall be Commander in Chief of the Army and Navy of the United States, and of the Militias of the several states, when called into actual service of the United States."
The "original intent of the Founders" doesn't mention an Air Force or a Coast Guard, therefore "originalists" who claim that everything must be mentioned need to dissolve the US Air Force and Coast Guard. The Founders were suspicious of standing professional armies, therefore wanted no permanent Army. Their "original intent" was that the Army would be raised from the state militias when needed. That's why Congress designates training, arming and disciplining of the militias even though they were state organizations. The Founders recognized the need for a small permanent ground force, so placed the Marine Corps under control of the professional Navy.
The only military weapons mentioned in the Constitution are "ships of war" (Article I, Section 10) and "arms" in the Second Amendment. To comply with "Originalists" demand that everything had to be specifically mentioned in order to be acceptable, we will have to eliminate all weaponry except those two. The reference to "ships of war" refers to prohibiting states keeping them during peacetime without congressional approval; it doesn't say the US can keep them at anytime.
Original intent of the Second Amendment was for national defense. Creator of the amendment James Madison's statement that, "A well regulated militia, composed of the body of the people, trained in arms, is the best most natural defense of a free country," means national defense, and nothing else. That means the "original intent" was for that portion of the population eligible to be militia members had a right to "keep and bear arms." The Militia Act of 1903 organized the various state militias into the present national guard system, so the old state militias are the present national guards, but that didn't change the Second Amendment or Article I, Section 8, paragraph 16, that empowers Congress to arm the militias.
The only mention of highways in the Constitution is of "post Roads" (Article I, Section 8, paragraph 7). Original intent was to move the mail on horse-drawn wagons over dirt paths through the forests. "Original intent" would dictate that we can't load mail onto aircraft and fly it to other locations. There can be no interstate highways or national railroads; because they aren't mentioned in the Constitution.
Strict Constructionists and Originalists have always insisted on continuation of the political agenda of the 18th Century. That would leave many programs in question. They attack Social Security by citing Congress's rejection of a pension for a Revolutionary War widow. But they distort the Founders's intent. The proposed pension was rejected because it was "personal welfare" or "private welfare"; not the "general welfare" the Constitution authorizes in Article I, Section 8, paragraph 1, and which makes Social Security possible. It is also worth noting that modern "Originalists" and "Strict Constructionists" endorse and support Bush's scheme to turn Social Security into a "personal" system or a "private" program.
Then there's the matter of impeachment for miscreant presidents, vice presidents and federal officials. Founder Alexander Hamilton specified in Federalist Paper 65 the "original intent" on the issue as authorized on three concerns: a) actions involving violation of public trust; b) political in nature, c) bringing harm to the nation. None of these "original intents" were present in the Clinton impeachment; all were present in Nixon's Watergate capers, Reagan's Iran-contra subversion and Bush's war, National Security Agency spying on Americans, and many other actions. but we couldn't and can't get most "Originalists" behind impeachment of Nixon, Reagan and Bush.
Original intent was that only property-owning men (preferably white) be allowed to vote, but we amended the Constitution to allow every American 18 or older to vote. Amending was also "original intent"; so which original intent do we honor? Conservatives say the 14th Amendment doesn't limit state governments even though the intent of the 14th was to do just that.
The presidential oath of office does not contain the phrase "so help me God" but all "Originalist" Presidents did not eliminate that phrase. Nixon didn't, Reagan didn't, neither Bush did and all claimed to be Strict Constructionists who adhered to "original intent" of the Founders. The Supreme Court's "Originalist" RATS faction of Roberts, Alito, Thomas and Scalia won't clue those morons in on that either, and neither did the chief justices who administered the oath for those four bumpkins. Using the Bible to take oaths of office was not an "original intent" and appears to be counter to what the Founders intended, but "Strict Constructionists" adamantly demand the Bible be used at all swearing-in ceremonies.
In fact, the original intent of the Founders was that there be no mixing of religion and government. They wrote that into the Constitution twice. First in Article VI, that no religious test ever be required for a government post, and the First Amendment that says no laws concerning things established by religion, including religion itself. That means no laws for religion and no laws against religion. Modern Originalists in the Republican Party refuse to honor that separation while trying to infuse religion into government at every opportunity.
This brings us to the liberation of other nations and overthrowing regimes in the name of anti-communism or other reasons. Of course there was no communist movement at the time of our Founders so how could they have had an "original intent" that envisioned the anti-communism movement. Article I, Section 8, paragraph 18, says that flaws must be based on the powers the Constitution places with government, its departments and the officers of the nation. There is nothing even suggesting we can determine the governmental or political composition of any other nation. But "Originalists" ignore that principle all the time.
And there is nothing in the Constitution empowering government to legislate what we inhale, ingest or insert into our bodies, but Strict Constructionists trample each other rushing to make laws prohibiting drug use, even imprisoning deathly ill Americans who use marijuana for pain control and wasting billions of dollars in the process.
At a recent University of Portland (Oregon) ceremony Justice Scalia, as reported in the Portland Oregonian, said:
"Long-standing practices should win out over abstract rules when the U.S. Constitution is interpreted, Supreme Court Justice Antonin Scalia told a crowd of more than 1,500 Thursday at the University of Portland.
"The Virginia jurist, who has served on the high court since 1986, gave the keynote speech on the opening night of a three-day conference on religious freedom at the Catholic school.
"Scalia summarized several cases in which he disagreed with the majority's opinion, including Texas Monthly Inc. v. Bullock (1989), in which the court struck down the practice of exempting religious texts from sales taxes. He said the court applied a modern test evaluating whether a law favored religion. Scalia, who is known for conservative stances and literal interpretations of the Constitution, condemned such a test when it contradicts practices that society has accepted for years."
Scalia is an idiot.
What was common practice before the Constitution was created still has to pass the constitutional test in order to continue to exist. Scalia can't comprehend that. And, under Scalia's reasoning, if unconstitutional practices continue long enough to be widely accepted (such as racial segregationist Jim Crow laws after the Civil War or taxing all citizens to support a state-favored church) they obtain the status of constitutional and negate the specific words of the Constitution. That is not the "original intent" on amending the Constitution.
The ridiculousness of Scalia's position was borne out in the recent court decision of Ledbetter v. Goodyear Tire and Rubber Co. in which Scalia and four other right-wing justices ruled that a sex-discrimination suit cannot be brought after 180 days from the start of the discrimination, even if discrimination wasn't known until much later. Upholding a law that established the 180-day standard affirms that an act that is blatantly illegal becomes legal based entirely on time.
When the Constitution was proposed and adopted, abortion was common and freely available on demand. Had the Founders had an "original intent" to subject the reproductive process to governmental action, they would have included that in the Constitution one way or another. They did not. The Constitution is totally silent on abortion, reproduction, sexual practices or proclivities, such as our love lives and marriages. That means the original intent was government have no authority to act in these areas. But it was Scalia and four other "Originalists" who upheld a government ban on what is questionably called "partial-birth" abortion, and they did so more on their religious beliefs than on their constitutional beliefs. Basing constitutional decisions on anything other than the Constitution is not an original intent.
"Originalists" are all in a tizzy for government to dictate to us who we can marry. It had been common in the past that government forbid white-and-black union, mostly in the South, and Caucasian-and-Asian union, mostly in the West. None of that is government's business, and now political right "Originalists" want government forbidding same-sex unions. Government's authority in this area should be restricted to enforcing the contractual obligations of marriage, and nothing more, on a true "original intent" basis.
THE REAL ORIGINAL INTENT
"Limited Government" is a concept the political right always cites but refuses to observe. The previously mentioned Article I, Section 8, paragraph 18 statement that government must have a constitutional power for what it does is true "limited government." Use only those powers given to government means no laws against abortion, no meddling in love lives and marriages, and no religious involvement.
Chaplains in the military (probably unconstitutional on its face) are overlooked because the military takes young Americans out of their homes where they could practice their religion freely and sends them to strange and exotic places, such as Utah, so we have chaplains to celebrate their normal faiths with them.
Original intent was not intended to forever lock the US into an 18th-century political agenda. It was about flexibility with well-deduced powers to address undefined or unseen problems in the future.
An example is the Eighth Amendment's prohibition of "cruel" punishment. What was considered cruel in 1789 when it was written might not be considered cruel today and vice versa. The Constitution must be consistent in the powers that it contains but not in the programs the nation shall create.
Original intent would require no mention of a deity on the coins; no mention of god in the Pledge of Allegiance; in fact, no pledge nor power to demand allegiance or regulate our patriotism or lack of such. No intent to prohibit burning a flag that isn't owned by government. And no situation in which more than 200 million firearms are freely circulating in society, much of them in the hands of criminals. Some government activities not specifically mentioned would fall under Congress's power to regulate commerce. But licensing of the radio and television is another matter. There was no electronic communication at the time, so how could the Founders have an original intent for us to follow? We have to rely on Article 4, Section 3, which empowers Congress to make rule concerning property belonging to the public.
But "original intent" also includes a concept political-right Strict Constructionists reject. It is the doctrine of "implied powers" (loose constructionism) explained by John Marshall (a Founder) and this solidifies the Constitution as a "living document" ; another concept rejected by the right.
Implied power (Article I, Section 8, paragraph 18, that Congress can make laws that are necessary and proper to implement constitutional powers) is demonstrated on taxation. The Constitution says Congress can lay and collect taxes. But no one expects members of Congress to go door to door collecting taxes, they used implied power to create the Internal Revenue Service (IRS) for the actually collection. The IRS doesn't need to be specifically authorized.
Implied powers also means that Congress can use its power to "provide for the common defence" of the nation to create an Air Force and Coast Guard and to equip the military forces with any weaponry needed for protection.
Implied power to regulate interstate commerce also extends to those channels in which commerce is conducted, so Congress can create a highway system across the nation to facilitate commerce. President Dwight Eisenhower used national-defense powers to propose the Interstate Highway system for easier military movements. Highways therefore, didn't need to be specifically mentioned in the Constitution.
Originalism is strangely missing when it comes to the war against Iraq. Article I, Section 8, paragraph 18, says all laws (all government action requires law) must be based on powers the Constitution places with government. There is no power for the US to "liberate" other people from their own leaders and nothing that says the US shall determine the political or governmental structure of other nations. In spite of this lack, the US ~ usually under the leadership of conservative Strict Constructionists ~ has overthrown foreign governments about three dozen times to install US-friendly dictators, who then murdered thousands of their own people with impunity. Many of those deposed foreign regimes were democratically chosen governments.
The article shall conclude with some relevant quotes on war from James Madison, who should know something of originalism since it was he who pushed for a Constitution to solidly unite 13 separate "nations" into one. He said:
"If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy."
"It is a universal truth that the loss of liberty at home is to be charged to the provisions against danger, real or pretended, from abroad."
"No nation could preserve its freedom in the midst of continual warfare."
"Of all the enemies of public liberty, war is perhaps the most to be dreaded, because it comprises and develops the germ of every other."
"Each generation should be made to bear the burden of its own war, instead of carrying them on, at the expense of other generations."