Author & Speaker

Original Intent, But Only If You Can Figure It Out

Supreme Court Justice Antonin Scalia is at it again, peddling his notion that the Constitution must have a fixed meaning as of September 1787. In remarks printed in the Washington Post, Scalia offers the novel thought that but for his fealty to original intent, his judicial decisions would be really conservative. Oh, my.
Rather than dwell on that peculiar proposition, I find myself wanting to ask the good Justice to read James Madison’s Federalist No. 37. Writing just months after the Convention wrote the Constitution, Madison was already trying to explain why parts of it — in this instance, the balance between federal and state governments — were so obscure.
In his stiff and slightly tortured prose, Madison drives to the heart of why Scalia’s notion of original intent is so daffy. Stick with me on this one. There’s gold in those clumsy sentences.
“The use of ideas is to express words,” Madison starts out. Check. “But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas.” Got it? Language is both a blunt instrument, and one that is endlessly shifting.
“Hence it must happen that,” our text continues, “however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered.” OK, I admit that Madison proves his point with his own unfortunate writing style; but, still, the point is that this “unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined.”
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James Madison, in the only portrait that did not make him look like a constipated geek
To illustrate his point, Madison turns to the Bible, where the Almighty himself is stuck using human language to communicate with us, leaving his meaning “luminous though it must be, rendered dim and doubtful, by the cloudy medium through which it is communicated.” Madison finds three causes of “vague and incorrect definitions” in the Constitution:
— “Indistinctness of object”: I think this refers to the many times when the Convention delegates selected compromise language to try to paper over their differences.
— “imperfection of the organ of conception”: Love this! I think this means people sometimes screw up.
— “inadequateness of the vehicle of ideas”: That is, the language is treacherous. You think you are saying one thing, and it turns out you may have said something else.
If Madison could be so modest about the text of the Constitution, and its problems, it seems a shame that Justice Scalia cannot show a similar modesty.