Original intent Summary

  • Last updated on November 11, 2022

Approach to judicial interpretation asserting that both laws and provisions of the U.S. Constitution should be construed according to the intentions of those who first framed them.

After Marbury v. Madison[case]Marbury v. Madison[Marbury v. Madison] (1803), in which the Supreme Court claimed for itself the power to interpret the U.S. Constitution and review acts of Congress, attempts have been made to invoke the original intent of the Constitution’s Framers or various legislatures in deciding how to apply the law to specific cases. The first explicit reference to original intent was in Hylton v. United States[case]Hylton v. United States[Hylton v. United States] (1796), in which the Court wrote that “it was obviously the intention of the framers of the Constitution, that Congress should possess full power over every species of taxable property, except exports.” However, although the doctrine of original intent has a long history, little if any agreement exists about how the Court should go about ascertaining original intent or how it should be used if and when that intent has been found.

Types of Original Intent

Although all forms of original intent share a reference to the earliest meaning of the law or constitutional provision in question, different approaches have been taken toward defining just what original intent actually means. Originalism (sometimes called intentionalism or formalism) refers to the attempt to understand the intentions of the Framers of the law or the Constitution in order to apply those intentions to specific cases. When using this approach, the Court often makes use of written records showing how and why a particular law or constitutional provision was framed in a certain form. Debates of Congress or state legislatures, committee reports, or, in the case of the Constitution, the notes of James Madison or other members of the Constitution Convention of 1787, The Federalist (1788), as well as the reports of the debates of the various ratifying conventions of the states may be used singly or in combination to understand the intentions of those who first framed or applied those laws. Similar attempts have been made in relation to documents surrounding the passage of the Bill of Rights and the Fourteenth Amendment, arguably the most significant amendment to be adopted since the Civil War because it has been used to apply various provisions of the Bill of Rights to the states in addition to the federal government.

A different form of original intent is textualism, whose practitioners concentrate exclusively on the text of the law or constitutional provision. Adherents to this form assume that the wording of the acts is the best indicator of what their creators intended and point out that it is the text of the law, not the documents commenting on it, that is legally binding. This does not mean that textualists never make use of written reports concerning the framing and passage of particular laws. Because not all laws are written with the same clarity, ambiguity may arise about the meanings of particular words or phrases within the text of those laws. When that occurs, textualist justices make use of written records, but only to understand the meaning and usage of particular words or phrases as they were employed at the time of the law’s passage. Original intent for the textualist therefore refers to the original language of the legal text interpreted according to the normal use of language at the time of the law’s adoption.

A third form of original intent, structuralism, anchors its approach to legal or constitutional texts in the overall constitutional vision of the separation of powers. Followers of this form try to ground their interpretation in the principles of federalism that underlie the Constitution in particular, which allocates limited powers to the federal government in favor of the states, and legislative power to legislatures rather than to courts. When using this approach, the justices attempt to determine whether the particular law in question was legitimately adopted that is, if the adopting institution was the appropriate agency to regulate that specific area. Laws that are nullified are voided primarily because the Court determined that the adopting institution did not have the appropriate power to act in the first place.

Sources of Original Intent

Opinions varies on the best source of original intent. Although textualists and structuralists tend to place emphasis on written documents, they, along with their originalist colleagues, look beyond legal texts when necessary to clarify the text’s original meaning. Originalists, however, normally go beyond clarification of written texts to the intentions of the people involved in writing and adopting legal texts.

The question of deciding whose original intent is to prevail becomes important and problematic. Legislative acts are often written by committees, where debate is carried on by legislators or even staff members, whose motives are likely to be quite varied. Furthermore, the supporters of measures that become laws as well as the presidents and governors who sign them are apt to have differing intents, making it difficult for the Supreme Court to definitively ascertain the true intent of the legislation adopted.

When the question pertains to constitutional adjudication, the issue can become even more complex. Although many originalists look to the intent of the Constitution’s Framers, others believe it more legitimate to canvass the records of the state ratifying conventions because the Constitution did not actually become the “supreme law of the land” until enough states had consented to it. Madison favored this approach because he believed that no consistent statement of intent could be found among those who had been present at the convention itself. Many states, however, kept no official records of those conventions, and some of the states’ documents are either ambiguous as to the actual debates or uncertain as to individual motives.

Similar problems occur when attempting to understand the intent of those who framed and adopted the Bill of Rights and the Fourteenth Amendment. Although some records exist of the debates over the composition, modification, and adoption of these amendments, they are often incomplete or else varied enough to make it exceedingly difficult to determine a specific intent in any particular case. Often the final language of these amendments was the result of compromise between the House of Representatives and the Senate or, in the case of the Fourteenth Amendment, between radical and moderate Reconstruction Republicans. Similarly, the motives of the particular ratifying states could be just as varied, determined as they often were by local and regional interests that played no part in the framing of the original texts involved.

The Legitimacy of Original Intent

Consequently, there were many, including many members of the Court, who cast a wary eye on the use of an original intent approach in deciding particular cases. Those who criticize such an approach point out that there is too little information that is truly useful or that there is too much information that is ultimately contradictory. Still others oppose original intent on the grounds that the issues of the present should not necessarily be decided by the standards of the past. These advocates of a more common-law approach believe that changing circumstances require the Court to see written laws, including constitutional law, as providing only the most general guidelines for the justices to follow as they apply their own best wisdom to specific cases as they arise.

Ultimately the debate between advocates of original intent and “living law” approaches underlies much of the division found in the decisions of the Court in the latter part of the twentieth century. Indeed, this debate not only has taken place within the Court but also often forms the battleground on which debates over nominations of potential justices is fought. Careful reading of the opinions of the various justices, however, reveals that even the most “strict constructionist” among them will abandon the original intent approach when it fails to produce a desired result, and even the most committed common-law justices will not hesitate to adopt it when their own purposes are furthered. In the final analysis, it must be remembered that original intent, of whatever variety, is only a tool of judging and not the final judgment itself.

Further Reading
  • Bork, Robert. The Tempting of America: The Political Seduction of the Law. New York: Free Press, 1990.
  • Davis, Derek. Original Intent: Chief Justice Rehnquist and the Course of American Church/State Relations. Buffalo: Prometheus Books, 1991.
  • Jaffa, Harry. Original Intent and the Framers of the Constitution: A Disputed Question. Washington, D.C.: Regnery, 1994.
  • Rakove, Jack. Original Meanings: Politics and Ideas in the Making of the Constitution. New York: Alfred A. Knopf, 1996.
  • Scalia, Antonin. A Matter of Interpretation: Federal Courts and the Law. Princeton, N.J. : Princeton University Press, 1997.

Common law

Constitutional Convention

Constitutional interpretation

Federalist, The

Fourteenth Amendment

Hylton v. United States

Judicial activism

Separation of powers

Statutory interpretation

Categories: History