Original Intent and the Framer's Constitution [Paperback]

Leonard W. Levy (Author)

Book Description

ISBN-10: 1566633125 | ISBN-13: 978-1566633123 | Publication Date: August 15, 2000

For more than two hundred years a debate has raged between those who believe that jurists should follow the original intentions of the Founding Fathers and those who argue that the Constitution is a living document subject to interpretation by each succeeding generation. The controversy has flared anew in our own time as a facet of the battle between conservatives and liberals. In Original Intent and the Framers' Constitution, the distinguished constitutional scholar Leonard Levy cuts through the Gordian Knot of claim and counterclaim with an argument that is clear, logical, and compelling. Rejecting the views of both left and right, he evaluates the doctrine of "original intent" by examining the sources of constitutional law and landmark cases. Finally, he finds no evidence for grounding the law in original intent. Judicial activism—the constant reinterpretation of the Constitution—he sees as inevitable.

Editorial Reviews

From Library Journal

Among its many legacies, the Reagan administration will be remembered for its spirited defense of "a jurisprudence of original intent"the simplistic assertion that the Constitution has a fixed and unchanging meaning established by the founders. Levy, a noted constitutional scholar and Pulitzer Prize-winning author of Origins of the Fifth Amendment (1968) levels a biting critique at this doctrine. Focusing on such constitutional provisions as presidential power, the contract clause, and the Bill of Rights, Levy claims that original intent lacks a sufficient historical foundation. This rich, useful book is presented in terms of the ongoing debate about the legitimate role of the judiciary generally and judicial review particularly. An excellent resource for constitutional scholars. Edward C. Dreyer, Univ. of Tulsa, Okla.
Copyright 1988 Reed Business Information, Inc. --This text refers to an out of print or unavailable edition of this title.

Review

Merciless and brilliant. In fascinating detail...Mr. Levy demonstrates that there can be no such animal [as original intent]....Judges and the rest of us can learn much from this remarkable book. (Anthony Lewis New York Times )

Leonard Levy's masterful analysis of the doctrine of original intent combines meticulous scholarship with glorious demolition. (Schlesinger, Arthur M., Jr. )

Myths are hard to kill, but if reason and reasonableness can ever persuade, Professor Levy's book should convert those who still cling to the naive jurisprudence of 'original intent.' (Eugene V. Rostow )

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Product Details

• Paperback: 543 pages
• Publisher: Ivan R Dee (August 15, 2000)
• Language: English
• ISBN-10: 1566633125
• ISBN-13: 978-1566633123
• Product Dimensions: 9.1 x 6 x 1.6 inches
• Shipping Weight: 1.6 pounds (View shipping rates and policies)
• Average Customer Review: 4.7 out of 5 stars  See all reviews (7 customer reviews)
• Amazon Best Sellers Rank: #707,767 in Books (See Top 100 in Books)

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14 of 15 people found the following review helpful:

5.0 out of 5 stars Superbly thorough argument, January 3, 2004

By 

David C. Leaumont "Dave" (Bossier City, LA United States) - See all my reviews
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This review is from: Original Intent and the Framer's Constitution (Paperback)

Levy's book is an overwhelmingly good source of information on the intent of the framers of the Constitution and on the idea that original intent is not something we should rely on. Levy uses exhaustive examples on many topics ranging from jurisprudence, the Bill of Rights and the 1st, 4th, 5th and 9th Amendments. I do have a few critiques on the book though.

1- This book appears to be more a collection of essays. Many of the chapters repeat what was previously and exhaustively discussed in other chapters as if the others chapters did not exist.
2- Levy does not delve into the issue of why the founding fathers feared establishments in regards to religion. England used the Anglican church to get a tighter grip on the colonies. Many Anglican parsonage positions were given as rewards (or punishments) to members of the English government. Taxes went to pay for salaries of these appointees while they did no real work. Many were never seen in the church at all. Also, England used the church to excise taxes from the colonies. None of this was discussed in the section of the establishment clause.
3- Many of the terms are discussed before they are defined. This causes confusion while reading. One such term is ex post facto laws. This is discussed at length early on, but not defined until the 5th or 6th chapter. For someone with little legal background, this is troublesome.

Despite these critiques, this was a superb addition to my library. I would recommend it for anyone who is interested in the ideas of the founders and what they were thinking while they were at the Constitutional Convention.

10 of 12 people found the following review helpful:

5.0 out of 5 stars A Careful Look at "Original Intent" or Lack of Orginal Intent, March 17, 2008

By 

James E. Egolf "James E. Egolf, MA" (Florida) - See all my reviews
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This review is from: Original Intent and the Framer's Constitution (Paperback)

Leonard Levy's book titled ORIGINAL INTENT AND THE FRAMERS'CONSTITUTION is a well written account of U.S. Constitutional History and a solid refutation that somehow the Framers had an original intent which in fact they did not have. As one reviewer commented modern critics have more confidence of the Framers original intent than the original Framers ever thought of when the Constitution was debated and written. Another reviewer had a good point when he posed a question of whose original intent. For those who claim that the U.S. Constitution was written and ratified in a historical vaccum, Levy's book disproves such bad thinking and bad history.

Levy's early comments dealt with the U.S. Constitution and U.S. diplomacy and foreign policy. Contrary to popular notions of an imperial presidency whereby the President is supposedly the sole arbitrator of foreign policy, Levy's historical probe demolishes this notion. Levy was clear that the Framers wanted members of Congress, especially the U.S. Senate, to handle diplomacy. Levy cited James Wilson of Pennsylvania whose comments on the Senate's dominant role regarding U.S. diplomacy. Among other sources for Levy's view, he cited THE FEDERALIST PAPERS number 69 regarding treaties and foreign policy. Article Six of the U.S. Constitution makes the U.S. Constitution the Supreme Law of the Land including honoring treaties. This inclusion in Article Six was in part a response to the Treaty of Paris, 1783 whereby the U.S. diplomats agreed to compensate the British Loyalists for wealth and property confiscated from them during the American Revolutionary War. Some state authorities tried to renege on paying these claims in violation of the Treaty. This may have been a smart move to keep the British from an excuse not to honor U.S. political independence.

Levy disproved the notion that somehow modern U.S. Supreme Court Justices have been activists (whatever that term means) while the Supreme Court Justices during early National U.S. History were not. In fact, Levy is clear that, from the historical record, early National History U.S. Supreme Court Justices were very active. Levy cited U.S. Supreme Court decisions as early as 1791 whereby the U.S. Suprmeme Court issued a series of decisions that demonstrated a very active Court. There were cases in 1791,1797, and 1797 that showed the U.S. Supreme Court was as active if not more so than the modern Supreme Court.

Levy not only dealt effectively with an early "activist" U.S. Supreme Court, he has good sections on Judicial Review. Many Americans thought that an unconstitutional law was null and void. However, the question was who was going to say so. The U.S. Supreme Court Justices said so in a badly written opinion in the case titled MARBURY VS MADISON (1803). While this was a badly written opinion, Chief Justice John Marshall (1755-1835) and his associate justices managed to set an effective legal precedent with a poorly reasoned deicison. The early U.S. Supreme Court made other important decisions involving civil cases regarding land disputes and the states. These cases showed a very active Supreme Court.

Those who argue that the U.S. Supreme Court did not have a good legal case for judicial review display a lack of knowledge of history. Levy mentioned very old historical documents limiting the power of kings and executive authority while protecting rights. Levy mentioned Magna Carta (1215), the English Petition of Right (1628), The Habeas Corpus Act (1679), The English Bill of Rights (1689), and the Act of Toleration (1689)as examples of historical documents that challenged the legal status quo while placing limits on what may be called unbridled excutive authority. Levy could have mentioned Henry II (1154-1189) who is known as the Father of the Common Law and started the grand jury system. Levy could have mentioned the layers of courts in Medieval England whose decisions along with the royal courts developed a body of law. Mention could have also been made the Catholic Canon Law with its concern for due process and start of a trial jury during the Fourth Lateran Council (1215). Levy also made a good case that early National state courts and jurists were very familiar with Judicial Review. These sources are clear that a concept of Judicial Review is old, tried, and true.

Not only does Levy deal with ratification of the U.S. Constitution and constitutional history, he also had good commentary on civil liberties. Levy was surprised that during early ratification arguments re the U.S. Constitution, little mention was made of civil liberties and due process. Such issues got attention only when the Anti-Federalists, those who opposed ratification of the U.S. Constitution, called attention to the lack of a Bill of Rights. Yet some of the state constitutions did mention civil liberties. Levy credited those who wrote the Constitution for Pennsylvania who substituted the words "shall not" for the "namby pamby" "ought not" regarding what state authorities shall not do in violation of individual rights. What corrected abuses re unreasonable searches and seizures was the use of civil law suits when legislative efforts failed.

The last two sections of the book undermine the notion that the Framers themselves were obsessed with Origianl Intent. The facts are that the Constituion Convention in 1787 was often poorly attended, and James Madison's NOTES are the only incomplete record of the debates. Readers should note that a few others made a few notes. Whatever the debates were, Levy was clear that we have at most one-fifth of the complete record if that much. Those who rely on Madison's NOTES should be careful. The fact is that James Madison did not want his NOTES published until much later as he did not want his NOTES to be taken as Original Intent. In other words, the Framers thought of the U.S. Consstituion as a guide rather than a legal document "etched in stone."

Thsi reviewer has little disagreement with Levy's book. As mentioned above, Levy could have mentioned Henry II's legal reforms in Medieval England and the legal reasoning among the Medieval Catholic Canon Law jurists. Levy's book is scholarly without being pedantic. Levy had no political ax to grind, and his book is important for anyone who has a serious interest in Constitutional Law and the Rule of Law as opposed to arbitrary will.

8 of 10 people found the following review helpful:

3.0 out of 5 stars A Strong but Incomplete Assault on Originalism, April 9, 2007

By 

Omer Belsky (Haifa, Israel) - See all my reviews
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This review is from: Original Intent and the Framer's Constitution (Paperback)

`Original Intent and the Framer's Constitution' is a collection of essays shoddily fitted together to make what are essentially two books. The first, discusses the Framer's (specifically, the members of the Constitutional Convention and the State Ratifying Conventions) ideas about various constitutional issues, including the President's powers, the Institute of Judicial Review, and the Bill of Rights. The second book is an attack on Originalist Jurisprudence, and particularly of the right-wing Originalists like Robert Bork and Edward Meese.

The essays about the original intent of the Framers are frankly quite dull. I don't think that's Levy's fault. What he does is collect basically every recorded reference about every issue he raises. That means we get endless citations from Madison, Mason, Hamilton, Jefferson, and scores of lesser known luminaries. The approach, mostly devoid of a narrative, does not make for lively reading.

Most impressive for me was the insight into the inner working of the Constitutional Convention. It is striking how much attention the Framers devoted to some issues (such as the President's powers on foreign relations) and how little attention was spent on some other parts (such as the clause forbidding the various states from interfering with Contracts). When reading about the Convention, one is again amazed how a handful of men - 39 finally signed the Constitution - created one of the most enduring, workable schemes for a government. Today, the equivalents of Madison and Hamilton would have had dozens of assistants and specialists about any issue under the sun - but in 1787, they wrote the entire basic law of the United States by themselves.

The story of how The United States got a Bill of Right is also interesting. A Bill of Right was left out of the constitution for no particularly good reason. Its absence proved the best argument against the constitution from the anti-Federalists. But there was a twist - the anti-Federalists didn't really want a Bill of Rights. Their real beef was with the Constitution's power over states, not over people. So when Madison actually brought forth a Bill of Rights, the Anti-Federalists did a volte-face and opposed it, realizing that its passage spelled the end of their states' rights platform.

Levy's other book is a strong attack on the new, Conservative Originalist movement. Although Levy can be harsh with Liberals - he accuses Justice William Brennan, the Liberal Icon, of "arrogance beyond belief" (p. 372) - his real targets are Conservative Originalists, particularly Robert Bork. Originalists claim that the Constitution has one, fixed meaning, given to it at the time of ratification, and that judges have to decipher what that intention was. Levy sees them as hypocrites, who promote sectarian agenda in the guise of impartial, Originalist rhetoric.

Levy makes some strong attacks about Originalism: First, he notes that Originalist Judges do a really bad job at it. What he calls "law-office" history is merely a collection of quotes, often taken out of context, to support one's position. As West Virginia's Chief Justice noted, people who believe in "historical scholarship as applied to the Constitution also probably believe in the Tooth Fairy and the Easter Bunny" (quoted on p. 320).

Furthermore, it's not clear whose opinion we should take into account. The Framers in the Philadelphia convention? The various ratifying conventions of the original 13 states? There are numerous problems with accepting each of these as authorities - for start, they rarely if ever had one mind on any question. Additionally, the documentation of the debates and discussions are very incomplete, so a full appraisal of the participants' views is impossible. Beyond that, the very act of searching for answers to specific questions in the historical record politicizes the Historian's quest. The result would make real history into "Law Office" history - marshalling evidence to support one's preexisting conclusion. This happened to first class historians while making their brief for "Brown vs. Board of Education". The idea that the judicial process is able to discover historical truths is doubtful.

Furthermore, it seems that at least some of the Framers of the Constitution wanted future generations to give their own text new meanings. Indeed, if one accepts Judicial Review of Federal legislation (as the Framers did not consistently do), then reading new meanings into such imprecise terms as "due process" and "cruel and unusual" is practically called for.

Finally, what we know about the Framer's intent envisions a United States radically different from modern day America. The changes cut across the Conservative/Liberal divide. The Framer's United States, 230 years out of date, imagines a completely different world, one that neither Liberals nor Conservatives could live with.

But Levy's attack is incomplete. First, Levy ignores attempts to read the constitution based on "Original Meaning" rather then "Original Intent" - that is, the meaning the constitution would have to a reasonable 18th century American Citizen. There are problems with this approach, but Levy hardly mentions it. Furthermore, Levy's description of the failures of Originalism in practice does not mean that it must fail in theory. To prove that all proponents of Originalism fail does not necessarily mean that Originalism as a doctrine must fail, at least for some cases.

Worse of all, Levy doesn't offer an alternative to Originalism. Do we really have to have completely unconstrained Justices? Are there no bounds to possible interpretations of the US Constitution? Levy hints that there may be, but fails to offer a positive program. I think that various approaches, including Ronald Dworkin's Rights based jurisprudence, Ely's ideas about securing democratic rights, and Israeli Supreme Court Justice Aaron Barack's Contextualism offer alternatives to Originalism, which may be more effective at constraining judges. As someone who leans towards Pragmatism, I think it may also effectively (if imperfectly) constrain judges. Regardless of what path one may chose, it is necessary to counter Originalism with more then nihilism.