Why is there such a rejection of "Original Intent?"?

Question

refers to the work of the "Founding Fathers" and the American Revoluton.

Answer 1

I think the best practice is strict interpretation (closely related to Original Intent). This actually puts the power within the hands of the people. If you want something outlawed (e.g. Flag Burning) you cannot go to the courts to get it outlawed. You have to change the Constitution. If you want a right added (e.g. Equal Protection) you have to change the Constitution.

Now, why is it rejected? Because people want to go to the courts for their solutions. Getting things done democraticly is a long and questionable practice...and if you do not win you have to start over. Go through the choice courts to get the rulings you want and you are well on your way. Much faster, btw, than a Constitutional Amendment and reversing a court decision takes more lawyers & judges...not a democratic majority like Amendments.

People do not like to send things to a vote of the public, mostly because they either fear the public doesn't know what is best for themselves OR they fear their positions are not as mainstream as they claim.

"Majority rules, minority rights"...Majorities should rule in the votes and the courts should ONLY make certain that the minority rights are not being trampled by averting the Constitution.

That is why people reject "Original Intent".

Answer 2

Because it is fundamentally unworkable in practice.

Original intent is based on the preferences and intentions of the original drafters of the Constitution. It basically says that all constitutional provisions should be interpreted, not based solely on their text, and not based on current societal context, but primarily on what the Founders originally wanted.

Two problems with this. First, the founders are all dead. Close to two centuries ago. There is no way to ask them what they wanted, and only a few selected writings that give any hint of their intent. And most of those writings were intended to marketing material, not a guideline to interpretation.

Second, the founders are all dead. Close to two centuries ago. They lived in a world that did not have instant communications around the globe, automobiles, international travel, the internet, nuclear bombs, abortion, penicillin, state police forces, aspirin, interracial marriage, television, and so on. They could not conceive of all the ramifications of their laws.

Under a literal original intent interpretation, only speech and the press are protected. Not TV, not the internet, not radio, not cell phones. Electronic searches are outside the 4th Amendment. Why? Because the founders never intended those technologies to be encompassed in the 1st or 4th Amendment. How do we know? We don't (see above). But if they really did, they would have said something like "and all future communications devices that we cannot even imagine yet". They didn't, because they couldn't imagine them. They weren't even aware of the extent of what they couldn't imagine.

Those are the insurmountable problems. Not only is there no way to accurately know what their intent was, but their intent as encompassed by their minds could not conceive of the vast changes that have taken place in the world.

That's why a living document model is the only workable paradigm. Now, you can go with a strict constructionist (literalist) approach, or a more flexible "spirit of the law" approach. But either of those have to be based in the current world, and our present society, not life as we no longer know it ten generations ago.

Answer 3

coragryph gives a good answer but left out the best reason for rejecting "Original Intent", to wit, the Founders themselves disagreed about what the Constitution meant.

Original intent relies on the assumption that there is a specific, clearly delineated and unique "intent" behind any given passage.

Yet history makes it clear that the very men who authored the document disagreed about its meaning. Thus it is obvious that the requisite unique "intent" never existed.

Answer 4

The Judiciary, especialy Federal, loves the power it holds by being able to make law. If they were to adhere to original intent, they could not make policy.

Answer 5

If there is only one donor, why would you want to set up a foundation in the first place? Just donate to who ever you want to.

Answer 6

I just want to say coagryph gave a FABULOUS answer to this question!!!! Somebody give him 10pts!

Answer 7

Because our lawmakers want to interpret things like they read it.

Answer 8

Why not ask this question about the bible?
HELLO!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!