- Paperback: 543 pages
- Publisher: Ivan R. Dee; 1st, No Additional Printings edition (August 15, 2000)
- Language: English
- ISBN-10: 1566633125
- ISBN-13: 978-1566633123
- Product Dimensions: 6.9 x 1.6 x 8.9 inches
- Shipping Weight: 2 pounds (View shipping rates and policies)
- Average Customer Review: 7 customer reviews
- Amazon Best Sellers Rank: #2,043,190 in Books (See Top 100 in Books)
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Original Intent and the Framer's Constitution 1st, No Additional Printings Edition
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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.
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, former New York Times columnist The New York Times)
Leonard Levy's masterful analysis of the doctrine of original intent combines meticulous scholarship with glorious demolition. (Arthur M. Schlesinger 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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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.
Levy has a true historians eye and quite simply, is great at what he does. In this collection of loosely connected essays exploring the histories of these and other problems in our constitution's history, he points out what judges should've known all along; there are as many intents as their were framers, ratifiers, and Supreme Court Justices. What's more, much of the 'history of intent' is simply a jumbled mess; ambiguuos, imcomplete, and imprecise.
The best essays of course are those focusing on whether original intent is a.) what was intended by the founders (isn't that ironic?) and b.) the doctrine we should actually be using. One thing I've learned in my study of the Constitution is that judges, as smart as they are, are simply bad historians. From Dred Scott to Bowers v. Hardwick, judges have botched history - whether deliberately as in Scott, or not, as in Bowers. One Justice Levy is particularly hard on is (one of my judicial heroes) Hugo Black - and for good reason! Black's history is narrow, reflects an overconfidence in the founders that they never even had of themeselves, and simply (particurly with the fourteenth amendmen) gets a lot of it wrong. He is hard on Robert Bork for just this reason.
In summary this is a great book. Levy doesn't take too many sides here, but is probably something akin to a Jeffersonian Democrat. He is rigorous, mindful of the burden of his task as historian, and illuminating. For another great argument by a historian on the difficulties of original intent, read Rakove's "Original Meanings". For an argument in favor of OI, the standard is Bork's "Tempting of America". Enjoy!
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.