The Intention of the Framers: A Note on Constitutional Interpretation Author(s): William Anderson Source: The American Political Science

Review, Vol. 49, No. 2 (Jun., 1955), pp. 340-352 Published by: American Political Science Association Stable URL: http://www.jstor.org/stable/1951807 . Accessed: 02/01/2014 18:04
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THE INTENTION OF THE FRAMERS: A NOTE ON CONSTITUTIONAL INTERPRETATION*

WILLIAM ANDERSON Universityof Minnesota

the phrase"the inIn discussionsof the United States Constitution, tentionof the framers"is oftenused, but it is hardlyever adequately is made obviously analyzed. The searchforthe intentions ofthe framers in the hope offinding out what theymeant by the words they put into the written Constitution. This leads to the examinationof various evithat thereis a lack dencesoutsidethe Constitution, and impliesa feeling in the wordsofthat document. ofclarity to raise some The discussionthat followswas written in order,first, ofthe questionsthat I thinkhave to be answeredbefore the phraseabout intentionscan have fullness of meaning as a tool of constitutional analysis; second,to express certain warningsagainst a too-confident assumptionthat "the intentionof the framers"can actually be known; today of the and, third,to consider brieflythe possible significance intention of the framers in case it could be discovered. An alternativephrase, "the intentionof the Constitution,"is also encountered at times,as are severalvariationsofit. "The Constitution," as used in such contexts,clearlyrefers to the writtendocument.Such expressions concerning the intentionof a documentare obviouslyelliptical and to a considerableextentinaccurateand misleading.It is as if the written and a documentis personified and endowed withintentions will instead of being a mere verbal memorandum.It is individual human beingswho have intentionsand wills,who make choices,and who seek to accomplishthings. As I have indicated,mypurposeis to analyzethephrase"the intention oftheframers" analysisofan objectiveor as a tool or aid in constitutional scientific sort.It happens,however,that the phrasehas also been put to use in propaganda.As one mightexpect,it is the extremists of the right and of the left,such as, forexample,the ultra-nationalists at one end of the scale and the convincedand unyielding at the other states'-righters who phrase. The fact that opend, make the most frequentuse of the posite schools of extremists can both findsome supportin the records fortheirviews of what the framers intendedshould give pause to more carefulscholars.Unfortunately, it is not always possible to distinguish
* This paper was firstpresented at the fiftieth annual meeting of The American Political Science Association at Chicago, Illinois, September 11, 1954. In revising it for publication I have had the benefit of suggestions from a number of colleagues, to whom I am grateful.

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and objectivestudentof the Constitubetweenthe scientific completely tion and the propagandist. The firstdiffiThe OriginalFramersand Their Supposed Intentions. is to determine what cultyin discussing"the intentionof the framers" individualpersonsare to be includedunderthe rubricof "the framers." This is a point seldom if ever made clear. A closelyrelated question is of "framers ofwhat?" Most usersof the phrase appear to thinkentirely in 1787. They Constitution the originalwritten the menwho formulated seeminglyforgetthat the present Constitution,while it still includes the changedthrough has been profoundly document, mostofthe original the makingofnumerousother and through adoptionof22 Amendments decisions. These decisionshave come not only fromthe constitutional SupremeCourt but also fromCongressand the Executive,fromthe arofarms,and in a sense from the acceptanceofthe people. But bitrament the nostalgicdesireto findand to returnto the supposedlybeneficent emanating fromthe presumablygreaterwisdom of the prescriptions "foundingfathers"is, I think,formany personsat the centerof their intended.If this be true,it is interestin discovering what the framers interestedpropagandistsplay also understandablewhy more selfishly upon the phrase about the framers'intentionsto achieve their objecpublic opinion. tives in influencing In passing,let it be said that in concentrating theirattentionsupon about the many personsseemto forget and theirintentions, theframers in the several i.e., the men who or adopters of the Constitution, ratifiers state ratifying conventionsstudied the Constitutionand voted to apwould have remaineda proveit. Withouttheiractionsthe Constitution of the document and their mere proposal. Surely theirunderstanding intentions withrespectto it also had considerableimportance. Let us considerfirstthe evidences concerning the intentionsof the original framers. The so-calledFederal Conventionof 1787 consistedat the maximum probablywas notpresof55 members, but that totalnumberofmembers ent on any one day. Members came and went. Some were presentfor just over 40 shortperiodsoftime.At the end,apparently onlyrelatively memberswere participating. The recordsof what mendid and said in the Conventionare mainly unofficial and decidedlyincomplete.Apparentlya numberof members spoke very little duringthe proceedings.Some did not serve on any committee. Clearlyif a memberattendsbut little,says little or nothing forthe record, and leaves littleor no otherrecserveson no committee, ord in the formof privateletters,memoranda,or a diary,it is hard to At the otherend of the scale were a number his intentions. reconstruct

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of members who attendedregularly, spoke often, servedon committees, to the workofthe Conventionand to the and in otherways contributed ofthese recordof what it did. The recordsas to theviewsand intentions are in some instancesfairly moreactive and vocal members substantial, but in othercases, like that of Gouverneur Morris,one of the principal finalstylistsof the Constitution, they are disappointingly incomplete. of the members, whateverthey were,did not The originalintentions theConvention. As thediscussion remain steadfast throughout developed, werepresented, and new topicsweretaken up, new ideas and arguments of various problemsof government werebroughtout. the interrelations Decisions were made one day and changed or rescindedthe next. On such matters as the election and the position of the chief executive, intentionswere changed almost from day to day. Also, having first voted to authorizeCongressto legislatein all cases in whichthe several states would be incompetent, the Conventionlater did not include this language in the Constitution.What did the framersintend on this major point? Can we be surethat even at the end,whenagreement was therewas fullconcurrence also in voted on certainverbal formulations, intentions? This raises questions as to the meaningsof words to which we shall devote our attentionlater. At the end of the deliberations 39 memberssigned the Constitution, but fouractive participating members(Elbridge Gerry,LutherMartin, George Mason and Edmund Randolph) refusedto do so. As to the 39 it is perhapssafe to say that theyall thoughtit best to put the signers, proposed Constitutionup to the people for approval, and thus avoid that would accompanyany attemptto get the delays and uncertainties a better constitutiondrafted.That there was a considerablearea of in the Preamble not onlyupon generalobjectivesas set forth agreement but also upon the generalplan ofthe Constitution-a consensusthat it was at least betterthan the scheme of the Articlesof Confederationwe must assume. Otherwisenot enough members would have been likelyto sign the document.Whethereverymemberof the Convention who signed it had read the completed document or heard it read is unknown.Some of the morecasual participants may well have accepted it upon the reassuranceof others. In any case no one will ever know how much each signeractually knew about the document,how many ofhis own wishesor intentions upon specific pointswereembodiedin it, or how fullythe memberswerein agreement upon the meaningsof the wordsin the document. We knowthat some ofthe men who signedit had definite reservations about some parts of the Constitution.AlexanderHamilton was one of these.Apparently a numberofmembers thought thereshouldhave been

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a bill of rights,but Hamilton thoughtotherwise.George Washington advised that men should put aside any personalobjections,supportthe after as drafted, and thentryto improveit by amendments Constitution its adoption. To what extent these unsatisfiedmembersagreed with otherson the meaningof what the Constitutionactually provided is not clear. I cannot underOn the basis of the recordas we have it, therefore, agreedfully stand how anyone can assert positivelythat all the signers even upon the words in the Constitution,much less upon what the the generalplan wordsmeant.How theirindividualviews deviated from will never be known fromthe presentrecord. The signerswho spoke conventionsput up a fairlyunited frontin favor in the state ratifying but even such collaboratingmembersas of adoptingthe Constitution, Hamilton and Madison in The Federalistessays clearlyhad divergent ideas about the nature of the Union, the respectivepowers of the naand national taxes-to name only a few tional and state governments, importantsubjects. In the precedingparagraphs I have treated the signersof the Conof that document, as most clearlyentitledto be called framers stitution althougha numberof themdid verylittlein the Convention.But what about those who refusedto sign? Are they to be counted among the whose intentionsscholarsshould tryto ascertain?At the end framers of the proposal. It did not express they were opponentsand not friends theirwishesor intentions. of the Conventionthere were a numberof Outside the membership public men of considerableinfluence.John Adams, Samuel Adams, may be mentionedin particular. Patrick Henry,and Thomas Jefferson SupremeCourt Justicesand othercarefulstudentsof the Constitution are notlikelyto quote thewordsofsuchpersonsas havingany particular intended.On the otherhand, those who relevanceto what the framers of speak and writeas propagandistsforsome particularinterpretation Men who favor a comthe Constitutionfrequently proceed otherwise. the emphasisin construing pact theoryof the Union and a states'-rights as if they Constitutionfrequently quote the later views of Jefferson expressedthe intentionsof the framers.Actually, duringthe framing Jefferson of the Constitution, was in France and was and ratification as to what the Conventionwas doing. After not adequately informed he swung around to having passed througha period of uncertainty, bill of rightswere added to it. His provideda supportthe Constitution and on the natureofthe Union have littleor laterviewson states' rights intended.They are entitledto weight no relevanceto what the framers ofwhat he believedthe Constitution ought expression onlyas Jefferson's

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to be. It is a curiousfact,however, thatJefferson, who was not one ofthe framers, shouldbe so widelyquoted on the Constitution whereasGeorge "the fatherof his country,"who was an effective member Washington, and the presidentof the Convention,should be so little quoted. To be sure,Washington wroteand said verylittle,but whathe did was sensible and carrieda greatdeal ofweight. To me it seemsfairly obvious that the testimony ofpersonswho were not in the Convention has only indirectand circumstantial value as indicatingwhat the originalframers intended.Those who quote Jefferson on the Constitution, forexample,must do so (a) because theylike his views and wishto have themprevail,and (b) because theythinkthe name of Jefferson has considerable propaganda value. Perhaps they overlookthe fact that whenhe wroteand spoke about the Constitution it wentintoeffect, after he was trying notto explainwhat theframers did the Constitutionso as to bend it to his and intendedbut to interpret own ideas of sound public policy. In each state conventionto whichthe Constitutionwas submitted, therewerea fewpersonswho had also servedin the Federal Convention. What they said in the state conventions, thoughintendedto persuade the other delegates,and obviouslyconciliatory toward the opposition, may be taken generally as some additional evidence of what these framers intended.Unfortunately, the recordsof the debates in the state conventionsare far frombeing complete. What other membersof the state conventionssaid, being contemhas some evidentialvalue, but is valuable mainly as porarycomment, revealingwhat men of that time thoughtabout the provisionsof the proposedConstitution, as noted above, and not about the intentions of the framers. If therewas a decided consensusamongthe adoptersthat in adopting the Constitutionthey understoodit to mean so-and-so,that interpretation should carry much weight as an interpretation by those who alone could bringthe Constitutioninto effect. On the otherhand, the the inwords of these delegateshave littlemore value fordetermining tentionsof the membersof the Federal Conventionthan the words of the numerousauthorsof pamphlets,lettersto newspapers,and private letterswritten at the time by non-members of the Federal Convention. An entirely different status must, naturally, be accorded to those Federalistessays that were writtenfor the New York papers by two brilliant youngmembersof the Federal Convention-Alexander Hamilton and JamesMadison. (JohnJaywas not a Conventionmember.)The in advocacy of the Constitutionby these two men, like essays written the post-Convention must membersthereof, utterancesof otherformer

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be accorded very great weight as evidence of the intentionsof the framers-unlessone can substantiatethe chargethat these men shifted theirpositionsafterthe Convention.What mighthave caused such a as to what was decided or would be forgetfulness shift?One possibility intended,but such a charge has not been seriouslypressed. Another would be duplicity, arisingfroma desireso strongto have the Constitutionadopted that deceptionwas practicedon thepublic and on thememas to the real meaningof the Constitution bers of the state conventions of the membersof the Convention. and the trueintentions Crosskeyhas expressedgrave doubts As I understandhim,Professor concerningin particular the candidness of James Madison's contributions to The Federalist.On the one point that I have looked into in this connection, namely,the powers delegated to the national government and those that were to be left to the states, I do not thinkhis chargesagainst Madison are supportedby the weightof the evidence. viewsin The I recognize that Hamiltonand Madison expresseddifferent Federaliston this importantpoint, at least so far as emphasis is conto say, namely, cerned,but that is in line withwhat I have been trying group that intentions are individual and are rarely wholly-unified intentions.It seems to me that on the whole the Federalistessays are still the best explicationof what several of the leading membersof the of Conventionintendedto accomplish,and an excellentinterpretation the areas of agreement reachedby the Convention'smajority. are the intentions Up to thispointmy conclusionsare that intentions (purposes,choices, acts of will, desiresfor a certain outcome) of indiand distinctindividual human beings. Every man, being a different from vidual, unavoidably has intentionsthat are somewhat different of unified those everyone else. Such a thing as a solid, completely in any groupwouldbe hardifnot impossible ofall the members intention to find. intentionsare highlysubjective and personal things. Furthermore, not like badges pinned to a coat lapel. They lie deep in the They are hearts and minds of men. They are not always clearlystated by those The formulation. who have them,nor even capable of clear and specific wordsused to conveythemseldom do so perfectly. As I read the evidence,therewas no single"intentionof the framers" of the as to the Constitution as a whole,beyondperhapsthe generalities to submitthe Constitution to the people for Preamble and the intention government. adoption as a measure that mightresultin more effective There were broad areas of general agreementamong the majority on as nationalsupremacy, and a threebranchesofgovernment, such matters national taxingpower. When one triesto spell out precomprehensive

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ciselywhatwas agreedupon on any specific point,however, the evidence is incompleteand contradictory. The Constitution as theBest Evidence.The Constitutionitselfis the best evidence of what agreements were reached in the Convention.It is the best evidence,but like comparabledocuments(statutes,treaties, contracts),it is not irrefutable proofof the intentions of the framers on a numberof subjects,forseveral reasons already implied or now to be given.Undoubtedlymen would be happierto set theirhands to a docuif they knew that it expressedperfectly ment of agreement theirintenbut sensibleand experienced tions and agreements, men do not expect in the productsofthe human mind. perfection As a documentthe writtenConstitutionis in many ways a superb piece of work.It is short,terse,and comprehensive. It outlinesa practical systemof national government that the first Congress and President found understandableand workable. By the breadth of its terforamendments, it makes it possible for minologyand by its provision Congressand the people to adapt it in practiceto changing needs,ideas, as the occasion It does not that and conditions arises. the governing say authoritiesare to governonly in accordance with the intentionsof the but in the main leaves themfreeto interpret originalframers, theirown powers and the formof government accordingto their own practical judgment.Nevertheless, the Constitution, like every other comparable human creation,has its limitations. 1. Every such document is unavoidably incomplete. The Constitution is a memorandumof agreementupon the points discussed and agreedupon, and to a lesserextentupon such pointsas the finaldrafters or stylistsof the documentthoughtit importantto insertforclarityor for other purposes. Time was short and the pressure to reach some the main task was great. Some subjects were agreementand to finish or simplynot dealt with. overlooked, Those who set goingthe new government underthe Constitution soon learned how incompleteit was. Almost at once they faced a series of constitutionalquestions to which that document gave no explicit answer: Had Congressthe power to chartera bank? To impose a proTo assume forthe national government tectivetariff? the obligationto pay the state debts? Had the Presidentalone the power to remove an officer whom he had appointedwith Senate consent?To declare Amerin a war in whichits ally, France, was involved? Had ican neutrality the Supreme Court the power to declare unconstitutionalan act of Congress? What did the framersintend on these issues? The Constitution did not say. of coverage on various importantmattersdoes Now incompleteness

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the not prove to the hilt that the Constitutiondoes not fairlyreflect on the points that were covered.Experienceshows members'intentions a new and relevant groupwhenever thatin any deliberative us, however, has already been reached on some points, agreement issue is raised after in the lightof it is necessary to go back and revisewhat has been written what needs to be said on the new point. Intentionson one point affect intentions on otherpoints. If membershad realized,forexample, that completeand independent the Presidentwas to develop a substantially mighthave qualifiedhis of of officers, they removal executive power appointingpower more than they did, or have had serious questions about the executive power they had already stated. Probably no two men present understood "the executive power" of the President in quite the same way. Some mighthave said it did not include the power At any rate, their agreement to submit the of removal of officers. wereagreed as to what the did not prove that all members Constitution Constitutiondid and did not provide on this or on any other issue. 2. No document recordingan agreementis likely to be perfectly to all its signers.Compromisesare reached in discussion satisfactory or parties. the various members that go onlypart way towardsatisfying as has already been noted. true of the Constitution, This was certainly What can we say about "the intentionof the framers"in such cases decided to yieldon some pointsin orderto exceptthat variousmembers gain what theywanted and intendedon others?How can we be certain that all members or even a majority understood each compromise provisionin the same way? mustbe, as documents 3. Being couchedin words,phrases,sentences, the Constitution was immediately susceptible to varying interprethe more tationson a numberofpoints.The longerit remainedin force, points of dispute arose. The meaningsof words,phrases, and clauses to prove that the intendedmeaningwas this weredebated in the effort and not that. Even punctuationmarks became the subject of dispute in punctuation can make a in a few instances, because a difference in meaning. difference Every word is likely to have two or more variant meaningsat the same time. For all practical purposesthe makingof dictionariesof the English language began in England in the 18th century,about sixty was drafted.The lexiconsor dictionaries years beforethe Constitution that were available in Americain the 1780's weremostlyone-manefforts and not men and public figures, based largelyon the usages of literary language. upon an exhaustivesamplingofall kindsofspokenand written but were distinctly incompleteby In short,they were good beginnings modernstandards. Even so they recordedseveral meaningsfor many

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words-good evidence that with more research,especially among more remoteand perhapsmoreplebeianusersofthe king'sEnglish,even more variantsmighthave been found. Into the Constitutionthe framersput such words and phrases as "jury trial," "commerce,"Y "among the several states," "ex post facto law," and "direct taxes." It is conceivable that when jury trial was agreedupon forFederal criminalcases variousmen thoughtof jurytrial as practicedin theirown states (and the state practicesweredifferent), while a few English-trainedlawyers in the Convention might think primarily of jury trial as practicedin England. Which would be right? Likewise,"commerce"had several meaningsin current usage, as did "trade" and other comparable terms. How can anyone be sure which or meaning,or that any singlemeaning,was intendedby all the framers by a majorityofthem?If Congressmay regulatecommerce "among the several states" does not this mean "between the several states"? James in The Federalist,No. 53, seems to have thoughtso, Madison, writing and the early Congresses acted upon this understanding. To be sure, "among" has also a somewhat different meaning,as in the sentence, "He was amonghis own people." But whena man is amongpeople he is betweenpeople to the rightand to the left,in frontof him,and behind him, and he is not inside any other person. To say positively that "commerce... among the several states" means all commerce,trade, and manufacture, not only between statesbut also withineach state,is indeed going very far. The dictionaryevidence is too incompleteand uncertainto warrantany such dogmaticconclusionas to the intentions ofthe framers, that was especiallyin view ofthe contrary interpretation in adopted practice. Had competentlegal draftsmen like Gouverneur Morrisand his associates intendedany such sweepinggrantofpowerto Congressthey could certainlyhave made theirmeaningclearer.If the intentionwas to give Congressfull power to regulate all internalcomit would thenas well as nowhave been morenatural to have said merce, "all commerce withinthe United States." Conditionschangein timeand the wordsin a memorandum of agreementmustbe applied to the new and unanticipatedcircumstances. Men a constitution can to know have intentions as drafting things they about, but can hardlyhave any intentions the unknownand unpreconcerning dictable. The productionof oil and natural gas, the electrical transmissionof power,messages,music, and pictures,the regulationof aviation and automotive traffic, the productionof atomic energy,cloudseeding for artificialrain-making,and other modern developments, could not have been withinthe minds and intentionsof the framers of the Constitutionwhen they distributedthe powers of government be-

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offluxand change tweenthe nation and the states. Knowingsomething in statingthe powers of the Constitution the drafters in human affairs, of the national governmentused words of broad and generic types that proved to be susceptible to considerableexpansion of meaning, but they could not have foreseenthe particularexpansions that have contentofmeaning takenplace. That "commerce"today has a different from whatit had in 1787 is too obvious to emphasize. Washingtonmade it clear that in his judgmentthe people who came questions afterhis timewould be able to decide theirown constitutional as they arose. He disclaimedany monopolyof wisdomforhimselfand his fellow members of the Federal Convention. He seems to have without quoting Jefferson's accepted the idea of Thomas Jefferson, that a constitution of belongs to the livingand not government words, the amendingarticle to the dead. As far as Washingtonwas concerned, of the Constitutionwas one of its principalprovisions.Hamilton and Madison in theirdifferent ways, while concedinga role to the Supreme the Constitution,looked to the people acting Court in interpreting politicalchannelsas the ultimatepower over the Constitution. through Presumably,then, the people would not be tied down foreverto the as theystood in 1787. meaningsofwordsin the Constitution of the With the passage of time, new generationsof interpreters Constitutionhave arisen, and more will arise, who in spite of all the from and farther improvedhistoricalaids available to themare farther and who look the events of 1787 and 1788; who use words differently; maze of public and thickening back througha constantlylengthening events and decisionsgoingall the way back to 1787 and beyond,but of which the most recent are likely to seem most important.The effort that would be requiredto overcomesome of these major obstacles so as to achieve an immediategrasp of the intentionsof men in 1787 is too great for most men to undertake,if indeed the resultis even possible of attainment. 4. Since the Constitution was designedby its authorsto supersedethe the intentionsof the leading framersupon Articlesof Confederation, fromthe fact that certainkey wordsused some points may be inferred to such wordsas I refer in the Articleswereleftout of the Constitution. (of the states). The omisand sovereignty confederacy, confederation, the Constitution sion ofsuch wordsfrom could hardlyhave been a mere was as Thus it may be argued that the originalConstitution oversight. revealingby virtueof its omissionsas it was by reason of the wordsit included. It seems strangethat this mode of arrivingat the intentions of the framers has not been morefullyexploited. The Intentions of theLater Framers.Twenty-twoamendmentsto the

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have been adopted and put into effect. Constitution These include the Bill of Rights, the three Civil War Amendments,the Income Tax Amendment,the Direct Election of Senators and Woman Suffrage Amendments,and several others of considerable importance. Other greatdecisionsaffecting the Constitution, like the politicaland military of defeats nullification have also wrought and ofsecession, greatchanges in the basic rules of government in the United States. Also, as already mentioned,various Presidents,the Congress,and the Supreme Court have made numerousdecisionsof great constitutional significance; and the people have on the whole acquiesced in what has been done. Thus in additionto the men of 1787 who sat down together in Philadelphia presumablyto revise the Articlesbut actually to make a new Constitution,there have been unnumbered"framers" in later years who have impressed some of their words and intentions upon the Constitution. The originaldocumenthas been overlaidwitha thickand growingencrustationof constitutionalrules and principlesby these later framers. Just what they intendedis also not always clear. What the framers of the 14th Amendment intendedhas become a subject for debate almost as keen as the debate over the intentionof the original framers. In cases of obvious conflict, which shall be given priority, the earlieror the later framers? Can therebe much doubt that in cases of conflict the later framers should prevail? And theselateradditionsto the Constitution raise theirown questions of verbal interpretation. What is meant by the phrases "due processof law" and "equal protection of the laws," in the 14thAmendment? Here are phrasesof greatpotentialamplitudefrom whichlawyersand judges have been able to extractvariousprocedural and substantiverestrictions on the powers of the states withoutreachingagreementon what the phrasesmean or theirframers intended. of the framers of these amendments? What, then,werethe intentions Is a definite and final answer any more nearly possible in these cases than it is in the case of the intentions of the originalframers? My own answer would be no. I simply am unable to imagine what types and quantitiesof recordswould be needed to clinchany importantpoint in the several major problemsthat arise. Neither can I imagine how any knownmethodof psychoanalysis, contentanalysis,or plain crystal-ball gazing applied to such recordsor to the people who leftthemcould give reliableand irrefutable of thoroughly answersconcerning the intentions these later framers.The transitionthat needs to be made from the enduringand objective facts of the writtenwords used to the fleeting, largelyunexpressed,and subjective facts of the intentionsof framers who passed away many years ago is beyond human capacity to make.

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of theOriginalFramers.I am Today of theIntentions The Pertinence not one to discouragescholarlyattemptsat historicalanalysis in order of the original to get at, as far as is humanlypossible,what the framers Constitutionand of the later amendmentshad in mind when they formulated their respectiveparts of the presentConstitution.On the are to be commended and that contrary,I think that such efforts should be encouragedto read as widelyas studentsof the Constitution of historicalscholarship.The nearermen time permitsin the offerings the better.Indeed, the searchfor what was intended, can get to knowing had is justified as a searchforthe meaningsthat the framers intentions in mindforthe wordstheyused, but it is a search that must be underand with an awarenessof its great difficulties. taken in humility of the At the same time, I think that the intentionor intentions original framersshould no longer be a main object of search or of emphasis by students of the Constitution,nor a principal rule of several guidance forthe public authorities.For this conclusionI offer reasons. parties werea contractor a treatywithdefinite 1. If the Constitution of in continuingexistence who could claim specificguarantees rights then the intentions withwhichthose partieswent underthe agreement, into the agreementwould have continuingimportance,althougheven overridethe actual termsof the agreethen they would not ordinarily is not of this nature. It is not a contract ment. But the Constitution and the states,or a contractor treaty betweenthe nationalgovernment ordainedby the people of among the several states. It is a Constitution the United States; and the people by theircontinuedacceptance ofit in a sense ordainit anew everyday. "We, the people ... ordainand establish . . . " The statementis in the presenttense.The Constitutiondoes belong to the living,and not to the dead. 2. However importantthe intentionsof originalframersmay have ruleshas as a total set of working seemed at one time,the Constitution of the been so modified by "the later framers"as to give the intentions much less significance today. The Constitutionin the originalframers second half of the 20th centuryis a far cry fromwhat it was in 1787are important, and I thinkthey are to some extent, 1788. If intentions of many more people, and then today we must considerthe intentions not just those of the originalframers. ofthe originalframers are stillimportant, 3. Insofaras the intentions the recorded evidence as to those intentionshas now been so fully exploited for over 160 years by competent scholars that very little is likelyto be distilledout of it. really new and reliableinterpretation fromtime to time,but insofar Of course therewill be reinterpretations

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as the reinterpreters keep close to what the originalframers themselves said and did, and use scientifically testable methods of historicaland legal analysis, no great new contributions to an understanding of the intentions of the originalframers can be expected. Several thingsmighthappen to change this judgment,however.Importantcollectionsof letters,diaries,and otherrecordsby some of the originalframers may yet be discovered.Furthermore, the methods of contentanalysis may become so improvedas to become reliablyusable in the analysis of the recordedevidence,old as it is. If some improved oftheinmethodofcontentanalysiscan be turnedtowardthe discovery tentionsof the originalframers fromthe recordsthat they left,some further knowledge of thoseintentions may be gained. I should be happy to see both of these thingshappen-the discoveryof new evidence and the improvement of the methodsof analyzingthe evidence. 4. Even if the new evidence and the new interpretation pointed toward a considerablerevisionof presentideas about what the original framersintended, they should not of themselves result in a correAs it stands today, the Constisponding change in the Constitution. tution has been developed througha variety of amendments,court decisions,statutes, and practices to meet the needs of the nation of today and tomorrow. Any new discoveryabout the intentionsof the originalframers could have littlemorethan antiquarianinteresttoday.

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