A primitive form of interpretation
“Original intent” is one way to interpret texts, in that every text needs a theory of interpretation and that applies to legal statutes and to the United States Constitution which is presented as a set of laws about what the branches of government can and cannot do rather than principles to which people aspire, as in the French “Declaration of the Rights of Man”. Laws need interpretation because they are set up at one time to be applicable to later times and circumstances may change or seem to change or may need, after due consideration, need alteration. When the Ten Commandments says that “Thou shalt not kill”, that has to be qualified or interpreted to mean “Thou shalt not murder” which means legal killing, as in warfare, and is not forbidden or at least that will remain the case until it seems the more inclusive meaning comes to appear as the essential one when war and the death penalty are regarded as part of the same prohibition, part and parcel of the same idea.
The doctrine of original intent seems reasonable enough. Consult what the Founding Fathers said or might have said about what the provisions of the Constitution said to provide a meaning of what its provisions mean, granted only that there has to be enough flexibility to deal with technological changes that require updates so that, for example, interstate commerce has to include the internet and not just the Fulton steamboat going between New York and New Jersey, though that might still be a problem in that it is also a part of a free press and so can’t be regulated for its content. That seems less problematic a form of interpretation than thinking that general precepts can be altered because the culture moves on, as is the treatment of abortion as a right, or that certain terms in the Constitution are so general that any number of things that can be included in the term, as when one considers due process in the fourteenth amendment includes gay and not just black citizens. Clearly, the Founding Fathers and the post Civil War legislators were not thinking of gay rights-- but then again maybe they were, being abstract enough to consider items not yet anticipated.
A good way to understand the doctrine of original intent is to look at principles of interpretation applied to other texts than those embodied in statutes. Consider how to interpret the narrative parts of the Bible, where people can gloss over the miracle of the parting of the Red Sera by saying people really were traveling through just a marshy land in the sea of reeds and that had been elaborated into the vision of a deluge overcoming the waters when it was only the changing of the tide or, rather than interpreting an unlikely event as exaggerated, it was just a fantastic image invented so as to satisfy the idea that there was something very special about a people gaining their freedom and so an event must have taken place about which people can jubilate, a psychological or literary interpretation rather than a debunking interpretation..Some people will reject those interpretations and insist on giving what is called a literal interpretation of scripture whereby the text means just what it seems to say. If the Egyptians were drowned, then that is what happened; If Adam and Eve gave birth to the first children, that is what happened.
But a peculiar quirk arises in the fundamentalist or literalist interpretation of Scripture. It always has to fill in stories not evident in the text to fill out the abbreviated story that does say in so many words what the text said. Where did Cain go to when he was exiled if there were no other people born? Well, they had been born, but it just hadn’t been mentioned. The same process of filling up what was unmentioned also applies to moral issues. Was Abrahan willing to kill Issac? Not really, because God was just testing Abraham just to see he was obedient, never really intending to do that. The trouble is that the text never says God was just testing Abraham. That is an additional story added by commentators from outside the text so as to clean it up, acceptable for children to read, though recovered by Kierkegaard to the original power of the story. The trouble with literalism is that you can reinterpret a passage as you please just by saying part of the story was left out.
The same problem arises with original intent. It also is literalist in saying the words mean what they say as vouchsafed by the Founding Fathers by elaborating what the statute says with the perhaps fanciful notion of what the founding fathers thought, history interposing between the words and the meaning. So Justice Alito cites the fact that there were laws against abortion throughout the nineteenth century to show that abortion was not a right even if doing so was to neglect the general directive of the fourteenth amendment or even the straightforward idea that rights that hedged by saying that previously not existed come into being, something said in the ninth amendment that rights unnamed are possible because rights are not restricted to ones already enunciated.
Consider the original intent argument offered by Justice Scalia in the Heller decision whereby people have a right to individually bear arms.He did not argue about what the words and phrases of the Second Amendment said, which her might have done by saying that “arms” mean whatever is the conventional available arms that are in the present day available. Instead, he offered an alternative interpolated narrative about how English law recognized the bearing of arms, but he hedges by being careful to say that only extreme restrictions are not permissible, as was the case in the D. C. case where people were not permitted to have firearms at home. He did not judge any further perhaps because there had never been a constitutional challenge to the right to restrict submachine guns or to find unconstitutional the Brady Bill which outlawed assault rifles until the provision was sunsetted. So it is inaccurate for Second Amendment arguments to say that the Amendment prohibits laws controlling assault rifles. The Supreme Court has not said that. All it did was say what was largely irrelevant.
What both Biblical literalism and original intent do is turn away from words and provide stories that provide support for what is in the present the conventional wisdom so that the words no longer dig deep but are rendered harmless. The Bible no longer is as terrifying as it definitely is and current customs of gun use are taken to be at what the Framers said. I guess both practices are inevitable in that they are ways to avoid just how powerful words can be and which might disrupt the current conventional understanding, which, by the way, is what education in Plato and ever afterwards was out to dispell.
Here is a collateral issue which is also out to eviscerate the powers of the Constitution. That is the idea that there is a difference between positive and negative rights. A negative right is one which is used to restrict government. For example, the government cannot abrogate free speech or freedom of assembly. It can even establish institutions like search warrants and trial by jury so as to limit what the government does to citizens. And the Fourteenth Amendment protects citizens from government by requiring due process even though it leads to a number of issues that now have to be adjudicated, such as whether preventing abortion is an intrusion into equal protection in that it applies to only one of the sexes, presumably because both sexes can regulate their own bodies. But positive rights are attempts to do whatever the prevailing times may allow to the government, such as requiring Social Security or racial integration, which are matters of legislation rather than constitutional guarantees. Conservatives will say that negative rights are good so as to keep the government from being intrusive but positive rights are fanciful and mischievous, made up out of the air, and expensive.
I question whether there really is a difference between negative and positive rights. Consider whether abortion rights are a negative or a positive right. They are a negative right because they prohibit the government from interfering into a woman’s body, but that is to be contrasted to the infliction on death to the fetus, should that be regarded as a human being, and so a question of fact as to when to regard the fetus as human and so neither positive nor negative a right. Moreover, abortion is a positive right in that there is an extension of a woman to control what some might regard as another human being, akin to slavery in that slaveholders could do what they would to their properties. Any positive right becomes a negative right by recasting it as a law having to do with what a government cannot do to a citizen. In general, Social Security or a guaranteed annual income can come to be considered negative rights should these programs become regarded as essential to the well being of the citizenry because the government would no longer be allowed to suppress the “God-given” ability for old people and then maybe everyone to have the economic necessities to survive and the government providing the institutions that allow that to happen, just as search warrants and trial by jury were expedients to preserve individual liberty.
The distinction between negative and positive rights comes down to the literalist and original intent playbook. It looks at conventional points of view and finds stories to supplement the meanings of the words in front of you to justify those by parading a number of horrible counterexamples of what terrible things would happen if positive rights were invoked. Prohibition was terrible, a positive intrusion on individual liberty, but that was soon abolished and cigarettes were controlled by local statutes, nowhere regarded as a positive assertion waged by the government to stop smoking in schools and restaurants and then office buildings. No one challenged the right of the federal government to stop smoking in its owned buildings. What Conservatives do is distrust anything that is new, wondering whether it is admirable, while in favor of what is familiar. Yes, beware of the FBI at Waco. It should not have interfered with an establishment of religion and engaged with arrests of people on the streets for illegal gun possession and child abuse. But control Colorado River water rights? That is a legislative issue as is whether to regard undocumented immigrants as criminals, and whether fetuses are to be considered as human, a Constitutional question not to be avoided with tales of legislation past. I think the human spirit is more imaginative than that in that people, even congresspeople, can use reason to find or reject new meanings for words.