Framers' Intention-William Anderson

8/13/2019 Framers' Intention-William Anderson

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The Intention of the Framers: A Note on Constitutional Interpretation

Author(s): William AndersonSource: The American Political Science Review, Vol. 49, No. 2 (Jun., 1955), pp. 340-352Published by: American Political Science AssociationStable URL: http://www.jstor.org/stable/1951807.

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THE INTENTION OF THE FRAMERS: A NOTE ONCONSTITUTIONAL INTERPRETATION*WILLIAM ANDERSONUniversity f Minnesota

In discussions f the United States Constitution,he phrase the in-tentionofthe framers s oftenused, but it is hardly ever adequatelyanalyzed. The searchfor he ntentions f theframerss made obviouslyin the hope offinding ut what theymeantby the words they put intothe written onstitution. his leads to theexaminationofvariousevi-dences outside heConstitution, nd implies feeling hat there s a lackofclaritynthe wordsofthat document.The discussion hat followswas written n order, irst, o raise someofthe questions hat thinkhave to be answered efore he phraseaboutintentionscan have fullness of meaning as a tool of constitutionalanalysis; second, to express certain warnings against a too-confidentassumption hat the intention f the framers an actuallybe known;and, third, o consider briefly he possible significance oday of theintention f the framersn case it could be discovered.An alternativephrase, the intentionof the Constitution, s alsoencountered t times, s are severalvariations f t. The Constitution,as used in such contexts, learly refers o thewritten ocument.Suchexpressions oncerning he intention f a document re obviouslyellip-tical and to a considerable xtent naccurateand misleading. t is as ifthewritten ocument s personified nd endowedwith ntentions nd awill instead ofbeing a mere verbal memorandum.t is individualhu-man beingswho have intentions nd wills,who make choices,and whoseek to accomplish hings.As I have indicated,my purpose s to analyzethephrase theintentionof heframers s a tool or aid in constitutionalnalysisof n objectiveorscientificort. t happens,however, hat thephrasehas also been puttouse in propaganda. As one might xpect, t is the extremists f the rightand ofthe eft, uch as, for xample, he ultra-nationalistst one end ofthe scale and the convinced nd unyielding tates'-righterst the otherend,whomake the most frequent se of thephrase. The fact that op-posite schoolsofextremists an both find ome support n the recordsfortheirviews of what the framersntended hould give pause to morecareful cholars.Unfortunately,t is not always possible to distinguish* This paper was firstpresented at the fiftieth nnual meeting of The American Politi-cal Science Association at Chicago, Illinois, September 11, 1954. In revising it for publica-tion I have had the benefit of suggestions from a number of colleagues, to whom I amgrateful.

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THE INTENTION OF THE FRAMERS 341completely etween he scientificnd objective studentoftheConstitu-tionand thepropagandist.The OriginalFramers nd TheirSupposed Intentions. he firstdiffi-culty n discussing the intention fthe framers s to determinewhatindividualpersons re tobe includedunder therubric f the framers.This is a point seldom fever made clear. A closelyrelated question sframers f what? Most usersofthephrase appear to think ntirely fthemen whoformulated he originalwritten onstitutionn 1787. Theyseemingly orget hat the presentConstitution,while it still includesmostoftheoriginal ocument, as beenprofoundlyhanged hrough headoptionof22 Amendmentsnd through he makingofnumerous therconstitutional ecisions.These decisionshave come not onlyfrom heSupremeCourt but also fromCongress nd theExecutive,from hear-bitrament farms, nd ina sensefrom he acceptanceof thepeople.Butthe nostalgicdesire to find nd to returnto the supposedlybeneficentprescriptionsmanatingfrom the presumablygreater wisdomof thefounding athers s, I think,formany personsat the centeroftheirinterestn discoveringwhat the framersntended. f this be true, t isalso understandablewhymore selfishlynterestedpropagandistsplayupon the phrase about the framers' ntentions o achieve theirobjec-tivesin influencing ublic opinion.In passing, et it be said thatin concentratingheirattentions pontheframersnd their ntentions,manypersons eemto forget bout theratifiersradopters f theConstitution,.e., themen whoin the severalstate ratifying onventions tudied the Constitution nd voted to ap-prove t.Without heir ctions theConstitutionwould have remainedmereproposal. Surelytheir understanding f the documentand theirintentionswith respectto it also had considerablemportance.Let us considerfirst he evidencesconcerning he intentions f theoriginal ramers.The so-calledFederal Conventionof 1787 consisted t themaximumof55 members, ut thattotal number fmembers robablywasnotpres-ent on any one day. Members came and went. Some were presentforonlyrelatively hortperiodsof time.At the end,apparently ust over40memberswere participating.The recordsofwhatmen did and said in the Conventionare mainlyunofficialnd decidedly ncomplete.Apparently numberofmembersspoke very little duringthe proceedings. ome did not serve on anycommittee. learly fa member ttendsbut little, ays littleornothingfor herecord, ervesonno committee,nd leaves little or no otherrec-ord n the form f private etters,memoranda, r a diary, t is hard toreconstruct is intentions.At the other nd of thescale werea number

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342 THE AMERICAN POLITICAL SCIENCE REVIEWof memberswhoattendedregularly, poke often, ervedon committees,and in otherwayscontributed o the workof the Convention nd to therecord f what t did. The records s to theviewsand intentionsfthesemore ctive and vocalmembers re in some nstancesfairly ubstantial,but in othercases, ike that of GouverneurMorris, ne of theprincipalfinal tylists f the Constitution, hey are disappointinglyncomplete.The original ntentions fthemembers,whatever hey were,did notremain teadfast hroughoutheConvention.As thediscussion eveloped,new topicsweretakenup,new deas and argumentswerepresented, ndthe nterrelationsf variousproblems fgovernmentwerebrought ut.Decisions were made one day and changedor rescindedthe next. Onsuch mattersas the electionand the positionof the chiefexecutive,intentionswere changed almost fromday to day. Also, having firstvotedto authorizeCongressto legislate n all cases inwhich heseveralstateswouldbe incompetent,heConvention aterdid not includethislanguage in the Constitution.What did the framers ntend on thismajor point?Can we be sure that even at theend,when greementwasvotedon certainverbalformulations,herewas fullconcurrence lso inintentions? his raisesquestionsas to themeaningsofwordsto whichwe shall devoteour attention ater.At theend of the deliberations 9 members ignedtheConstitution,but four ctiveparticipatingmembers Elbridge Gerry, utherMartin,GeorgeMason and Edmund Randolph) refused o do so. As to the39signers,t is perhapssafeto say that they ll thought t best toput theproposed Constitutionup to the people forapproval, and thus avoidthedelaysand uncertainties hatwouldaccompanyany attempt o geta better constitutiondrafted.That therewas a considerablearea ofagreement otonlyupon generalobjectivesas set forthn the Preamblebut also upon thegeneralplan oftheConstitution-a consensus hat twas at least betterthan theschemeof theArticlesofConfederation-we must assume. Otherwisenot enough members would have beenlikelyto sign the document.Whether verymember fthe Conventionwho signedit had read the completeddocument or heard it read isunknown. omeofthe morecasual participantsmay wellhave acceptedit upon the reassuranceof others. n any case no one will ever knowhow much each signer ctually knew about the document,how manyofhis own wishes rintentions pon specific oints were mbodied n it,orhowfully he memberswere n agreement pon the meaningsof thewords n thedocument.We knowthat someofthe men whosigned thad definiteeservationsabout some parts of the Constitution.AlexanderHamilton was one ofthese.Apparently number f members hought here houldhave been



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THE INTENTION OF THE FRAMERS 343a bill of rights, ut Hamiltonthoughtotherwise.GeorgeWashingtonadvisedthat men should put aside anypersonalobjections, upporttheConstitutions drafted,nd thentry oimprovetbyamendmentsfterits adoption. To what extentthese unsatisfiedmembersagreed withotherson the meaningofwhat the Constitution ctually provided isnot clear.On the basis of the recordas we have it, therefore, cannot under-stand how anyonecan assertpositively hat all the signers greedfullyeven upon the wordsin the Constitution,much less upon what thewordsmeant.How their ndividualviewsdeviatedfrom hegeneralplanwill neverbe known from he presentrecord.The signerswho spokein thestate ratifyingonventions ut up a fairly nitedfrontn favorof adoptingtheConstitution, ut even such collaboratingmembers sHamiltonand Madison in The Federalist ssays clearlyhad divergentideas about the natureof the Union,the respectivepowersofthe na-tional and stategovernments,nd nationaltaxes-to name only a fewimportant ubjects.In the precedingparagraphs have treatedthe signersofthe Con-stitution s mostclearly ntitled o be calledframers f thatdocument,although number fthemdidvery ittle n theConvention.But whatabout those who refused o sign?Are theyto be counted among theframerswhose intentions cholarsshould try to ascertain?At the endtheywereopponents ndnotfriends f theproposal. t did not expresstheirwishesor ntentions.Outsidethe membership fthe Conventionthere werea numberofpublic men of considerable nfluence.John Adams, Samuel Adams,Patrick Henry,and Thomas Jefferson aybe mentionedn particular.SupremeCourtJustices nd othercareful tudentsof the Constitutionarenot ikely oquotethewordsof uchpersons s having ny particularrelevanceto what theframersntended.On the otherhand,thosewhospeak and write s propagandists orsomeparticular nterpretationfthe Constitution requently roceedotherwise.Men who favor a com-pact theory f the Union and a states'-rightsmphasis n construingheConstitutionfrequently uote the later views of Jeffersons if theyexpressedthe intentions f the framers.Actually,duringthe framingand ratificationf the Constitution,Jefferson as in France and wasnot adequately informed s to what the Convention was doing.Afterhavingpassed through period of uncertainty, e swung around tosupport heConstitution rovided bill ofrightswere added to it. Hislaterviewsonstates'rights nd onthe natureof theUnionhave littleorno relevanceto whattheframersntended.They are entitled o weightonlyas Jefferson'sxpression fwhat he believedtheConstitution ught



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344 THE AMERICAN POLITICAL SCIENCE REVIEWto be. It is a curious act,however, hat Jefferson,ho was not one oftheframers,houldbe sowidelyquoted on the ConstitutionwhereasGeorgeWashington, the father fhis country, who was an effectivememberand thepresident f theConvention, hould be so little quoted. To besure,Washingtonwrote nd said very ittle, utwhathedid was sensibleand carried greatdeal ofweight.To me it seems fairly bvious that the testimony f personswhowerenot in the Convention has only indirect and circumstantial alue asindicatingwhattheoriginal ramers ntended.Those who quote Jeffer-son on theConstitution, orexample,mustdo so (a) because they ikehis views and wishto have themprevail, nd (b) because theythink hename of Jefferson as considerable propaganda value. Perhaps theyoverlook he fact that whenhe wrote nd spoke about the Constitutionaftertwent ntoeffect,ewastrying ottoexplainwhattheframers idand intendedbut to interpret heConstitution o as to bend it to hisown ideas of sound public policy.In each state convention o whichtheConstitutionwas submitted,therewerea fewpersonswhohad also served ntheFederal Convention.What theysaid in the state conventions, hough ntendedto persuadethe otherdelegates,and obviously conciliatory owardthe opposition,may be taken generally as some additional evidence of what theseframersntended.Unfortunately,he records fthe debatesin thestateconventions re farfrombeing complete.What other membersof the state conventions aid, being contem-porarycomment,has some evidentialvalue, but is valuable mainly asrevealingwhatmen of that time thought bout the provisionsof theproposedConstitution, s noted above, and not about the ntentions fthe framers.If therewas a decidedconsensus mongtheadoptersthat n adoptingthe Constitution hey understood t to mean so-and-so, hat interpre-tation should carry much weight as an interpretation y those whoalone could bringthe Constitutionnto effect. n the otherhand, thewordsofthesedelegateshave little morevalue fordetermininghein-tentionsofthe members fthe Federal Conventionthan the words ofthe numerous uthorsof pamphlets, etters o newspapers, nd privateletterswritten t the timebynon-membersfthe Federal Convention.An entirelydifferenttatus must, naturally,be accorded to thoseFederalist ssays that were written or the New York papers by twobrilliantyoungmembers f theFederal Convention-AlexanderHamil-tonandJamesMadison. (JohnJay was not a Conventionmember.)Theessayswrittenn advocacy ofthe Constitution y thesetwomen, ikethepost-Convention tterances fotherformermembers hereof,must



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THE INTENTION OF THE FRAMERS 345be accorded very great weightas evidence of the intentionsof theframers-unless one can substantiate he chargethat these menshiftedtheirpositionsafterthe Convention.What mighthave caused such ashift?One possibilitywould be forgetfulnesss to what was decidedorintended,but such a chargehas not been seriouslypressed.Anotherwouldbe duplicity, rising rom desire o strong o have the Constitu-tionadoptedthat deceptionwaspracticed nthepublic and on themem-bersof the state conventions s to the real meaningof theConstitutionand the true ntentions f the members ftheConvention.As I understandhim,Professor rosskeyhas expressedgravedoubtsconcerningn particularthe candidness of James Madison's contri-butionsto TheFederalist.On the one pointthat I have lookedinto inthisconnection, amely,the powersdelegatedto the national govern-mentand those that were to be leftto the states, I do not thinkhischargesagainstMadison are supportedby the weightofthe evidence.I recognize hatHamilton and Madison expresseddifferentiews n TheFederalist n thisimportantpoint,at least so far as emphasis s con-cerned,but that s in linewithwhat I have beentrying o say,namely,that intentions are individual and are rarely wholly-unified roupintentions. t seemsto me that on the whole the Federalist ssays arestillthebest explicationofwhat severalof the leading members f theConvention ntendedto accomplish, nd an excellent nterpretationftheareas ofagreement eachedbytheConvention'smajority.Up to thispoint myconclusions re that ntentions re the ntentions(purposes,choices,acts ofwill,desiresfora certain outcome) ofindi-vidual human beings. Every man, being a differentnd distinct ndi-vidual, unavoidablyhas intentions hat are somewhatdifferentromthose of everyoneelse. Such a thing as a solid, completelyunifiedintention f ll themembersnany groupwouldbe hard fnot mpossibleto find.Furthermore,ntentions re highly subjective and personal things.They are not like badges pinnedto a coat lapel. They lie deep in theheartsand mindsofmen.They are not always clearlystated by thosewhohave them,noreven capable ofclearand specific ormulation. hewordsused to conveythem eldom do so perfectly.As I readtheevidence, herewas no single intention f the framersas to theConstitution s a whole,beyondperhapsthegeneralities f thePreambleand the ntention o submit heConstitution o thepeopleforadoptionas a measure thatmightresult n moreeffective overnment.There werebroad areas of generalagreement mong the majorityonsuchmatters s national upremacy,hree ranches fgovernment,nd acomprehensive ationaltaxing power. When one triesto spell out pre-



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346 THE AMERICAN POLITICAL SCIENCE REVIEWciselywhatwas agreedupononany specific oint,however, he evidenceis incomplete and contradictory.The Constitutions theBest Evidence.The Constitution tself s thebest evidenceofwhat agreementswerereachedin the Convention. tis thebest evidence,but likecomparabledocuments statutes,treaties,contracts), t is not irrefutable roofof theintentions f the framers na numberofsubjects,for everal reasonsalready mpliedornow to begiven. Undoubtedlymenwould be happier to set theirhands to a docu-mentofagreementfthey knew that it expressedperfectly heir nten-tionsand agreements, ut sensibleand experiencedmendo not expectperfectionn theproducts f the humanmind.

As a document the writtenConstitution s in many ways a superbpiece ofwork. t is short, erse, nd comprehensive.t outlinesa prac-tical systemofnationalgovernmenthat the first ongress and Presi-dent found understandable nd workable.By the breadthof its ter-minology nd by ts provision oramendments,t makes it possibleforCongress nd thepeopleto adapt it inpracticeto changingneeds, deas,and conditions s the occasionarises. t does notsay thatthegoverningauthorities re to governonly n accordance with the intentions ftheoriginal ramers,ut in themain eaves themfree o interpret heir wnpowers and the formof government ccordingto their own practicaljudgment.Nevertheless,he Constitution,ike everyothercomparablehuman creation,has its limitations.1. Every such documentis unavoidably incomplete. The Consti-tution s a memorandum fagreementupon the points discussedandagreedupon,and to a lesser xtentuponsuchpoints s the finaldraftersor stylists fthe document houghtt important o insertforclarityorforotherpurposes.Time was short and the pressureto reach someagreement nd to finish he main task was great. Some subjects wereoverlooked, rsimplynotdealtwith.Thosewho set going he newgovernment ndertheConstitution oonlearned how incomplete t was. Almostat once theyfaced a seriesofconstitutionalquestions to which that document gave no explicitanswer:Had Congressthepowerto charter bank? To imposea pro-tectivetariff? o assumeforthe nationalgovernmentheobligation opay the state debts? Had the Presidentalone thepowerto removeanofficer hom he had appointedwithSenate consent?To declare Amer-ican neutralityn a war in which ts ally,France, was involved? Hadthe SupremeCourt the power to declare unconstitutional n act ofCongress?What did the framers ntendon these issues? The Consti-tutiondid not say.Now incompleteness f coverageon variousimportantmattersdoes



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THE INTENTION OF THE FRAMERS 347not prove to the hilt that the Constitutiondoes not fairlyreflect hemembers' ntentions n the points thatwerecovered.Experience howsus,however, hat n any deliberative roupwhenever new and relevantissueis raisedafter greement as alreadybeen reachedon some points,itis necessary ogoback and revisewhat has been writtennthe ightofwhatneeds to be said on the new point. Intentionson one pointaffectintentions n otherpoints. f membershad realized,forexample, thatthePresidentwas to developa substantially omplete nd independentexecutive power of removal of officers,heymighthave qualifiedhisappointingpowermore than theydid, or have had serious questionsabout the executivepowerthey had alreadystated. Probably no twomen presentunderstood the executive power of the President inquitethe sameway. Somemighthave said it did not nclude the powerof removal of officers. t any rate, their agreementto submit theConstitution idnot prove thatall memberswereagreedas to whattheConstitutiondid and did not provide on this or on any other ssue.2. No document recording n agreement s likely to be perfectlysatisfactoryo all its signers.Compromises re reached in discussionthat go onlypart waytoward atisfyinghe variousmembers rparties.This was certainly rue of the Constitution, s has alreadybeen noted.What can we say about the intentionof the framers n such casesexcept that variousmembers ecidedtoyieldon somepoints n order ogainwhattheywanted and intendedon others?How can we be certainthat all membersor even a majority understoodeach compromiseprovision n the same way?3. Being couched n words,phrases, entences, s documentsmustbe,the Constitutionwas immediately susceptible to varying interpre-tationson a number fpoints.The longer t remainednforce, he morepoints of dispute arose. The meaningsofwords,phrases,and clauseswere debatedin the effort o provethat the ntendedmeaningwas thisand not that. Even punctuationmarks became the subject ofdisputein a few instances,because a differencen punctuationcan make adifferencenmeaning.Every wordis likelyto have two or morevariantmeaningsat thesame time.For all practicalpurposesthemakingof dictionaries ftheEnglish language began in England in the 18th century, bout sixtyyearsbefore he Constitutionwas drafted.The lexiconsor dictionariesavailableinAmerica n the1780's weremostly ne-man ffortshat werebased largelyon theusages of iterarymenand publicfigures,nd notuponan exhaustive ampling fall kindsof pokenandwrittenanguage.In short, heyweregoodbeginnings ut weredistinctlyncompletebymodernstandards.Even so theyrecorded everalmeaningsformany



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348 THE AMERICAN POLITICAL SCIENCE REVIEWwords-good evidence thatwith moreresearch, specially amongmoreremote ndperhapsmoreplebeianusersoftheking'sEnglish, ven morevariantsmighthave been found.

Into the Constitutionthe framersput such words and phrases asjury trial, commerce, Yamong the several states, ex post factolaw, and direct taxes. It is conceivablethat when jury trial wasagreed uponfor ederal criminal ases variousmenthought f urytrialas practiced n theirown states (and thestatepracticesweredifferent),while a fewEnglish-trained awyers n the Conventionmightthinkprimarily f ury trial as practiced n England. Which would be right?Likewise, commerce had several meanings n current sage, as didtrade and other comparable terms.How can anyonebe surewhichmeaning, r thatany singlemeaning,was intendedbyall theframers rbya majority fthem? fCongressmay regulate ommerce amongtheseveral states doesnotthismean between the several states ? JamesMadison, writingn The Federalist,No. 53, seems to have thought o,and the early Congresses acted upon this understanding. o be sure,among has also a somewhat different eaning,as in the sentence,He was amonghis own people. But whena man is among people he isbetweenpeopleto theright nd to the eft, n front fhim,and behindhim, and he is not inside any other person. To say positively thatcommerce .. among the severalstates means all commerce, rade,and manufacture, ot only betweentatesbut also within ach state, sindeed going very far.The dictionary vidence is too incomplete nduncertain o warrant nysuchdogmaticconclusion s to the ntentionsof theframers,specially nviewofthe contrarynterpretationhatwasadopted in practice. Had competent egal draftsmen ike GouverneurMorrisand his associates ntended nysuchsweepinggrantofpowerto

Congress theycould certainlyhave made theirmeaningclearer. f theintentionwas to give Congressfullpowerto regulateall internal om-merce,twould thenas well as now have been morenaturaltohave saidall commercewithin he UnitedStates.Conditions hange n time and thewords n a memorandum fagree-mentmustbe appliedto the newand unanticipated ircumstances.Mendrafting constitution anhave intentions s tothings heyknowabout,but can hardlyhave anyintentions oncerninghe unknown nd unpre-dictable. The productionof oil and natural gas, the electrical trans-missionofpower,messages,music,and pictures, heregulation favi-ation and automotivetraffic,he production f atomicenergy, loud-seeding for artificialrain-making, nd other moderndevelopments,could nothave beenwithin heminds and intentions fthe framers fthe Constitutionwhentheydistributed he powersofgovernment e-



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THE INTENTION OF THE FRAMERS 349tweenthenationand the states. Knowingsomething f flux nd changein humanaffairs,he drafters ftheConstitutionn statingthe powersof the national governmentused words of broad and generic typesthat proved to be susceptible to considerableexpansionof meaning,but they could not have foreseen he particular xpansionsthat havetaken place. That commerce todayhas a differentontent f meaningfromwhat t had in 1787 s too obvious to emphasize.Washingtonmade it clear that inhis udgment hepeoplewhocameafterhis timewouldbe able to decidetheir wnconstitutional uestionsas theyarose. He disclaimedany monopolyofwisdomforhimself ndhis fellow membersof the Federal Convention. He seems to haveaccepted the idea of Thomas Jefferson, ithout quoting Jefferson'swords, hat a constitution fgovernment elongsto thelivingand notto the dead. As far as Washingtonwas concerned, he amending rticleof the Constitutionwas one of its principalprovisions.Hamilton andMadison in theirdifferent ays, whileconceding roleto the SupremeCourt in interpretinghe Constitution, ooked to the people actingthrough oliticalchannels s the ultimatepoweroverthe Constitution.Presumably, hen, the people would not be tied down forever o themeanings fwords n the Constitution s they tood n 1787.With the passage of time, new generationsof interpreters f theConstitutionhave arisen,and morewill arise,who in spite of all theimprovedhistorical ids available to themare farther nd farther romthe eventsof1787 and 1788; whouse words differently;nd who lookback through constantly engtheningnd thickeningmaze ofpublicevents and decisionsgoing ll thewayback to 1787 and beyond,but ofwhich the most recent are likelyto seem most important.The effortthat wouldbe required o overcome omeof thesemajorobstaclesso asto achieve an immediategraspof the intentions f men n 1787 is toogreatformostmen to undertake, findeed the result s even possibleof attainment.4. SincetheConstitutionwas designedby tsauthors o supersede heArticles of Confederation, he intentions f the leadingframers ponsome points maybe inferredrom he fact that certainkeywords usedin the Articleswere eftout of theConstitution. refer o suchwordsasconfederation,onfederacy, nd sovereignty of the states). The omis-sion of suchwordsfrom he Constitution ouldhardlyhave been a mereoversight. hus it maybe arguedthat theoriginalConstitutionwas asrevealingby virtue of ts omissions s it was by reasonof the words tincluded. t seems strangethat thismode ofarriving t the intentionsof the framers as not beenmorefully xploited.The Intentions ftheLaterFramers.Twenty-two mendments o the



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350 THE AMERICAN POLITICAL SCIENCE REVIEWConstitutionhave been adopted and put into effect. hese includetheBill of Rights, the three Civil War Amendments, he Income TaxAmendment, he Direct Election of Senators and Woman SuffrageAmendments, nd several others of considerable mportance.Othergreatdecisions ffectingheConstitution,ike thepoliticaland militarydefeats fnullificationnd ofsecession,have also wrought reatchangesin the basic rules of governmentn theUnited States. Also, as alreadymentioned, arious Presidents, he Congress,and the Supreme Courthave made numerousdecisionsof great constitutional ignificance; ndthepeoplehave on thewholeacquiesced in what has been done.Thus in additionto the men of1787 who sat down togethern Phila-delphia presumably o revise the Articlesbut actuallyto make a newConstitution, herehave been unnumbered framers n later yearswho have impressedsome of their words and intentionsupon theConstitution. he originaldocumenthas beenoverlaidwitha thick ndgrowing ncrustationof constitutional ules and principlesby theselater framers.Just what they ntended s also not always clear. Whatthe framers f the 14thAmendmentntendedhas become a subjectfordebate almostas keen as the debate over the intention f the originalframers. n cases ofobviousconflict, hich shall be given priority, heearlieror the later framers? an therebe muchdoubt that in cases ofconflict he later framers houldprevail?Andthese ateradditions o the Constitution aise their wnquestionsof verbal nterpretation.What is meantby thephrases due processoflaw and equal protection fthe aws, in the 14thAmendment?Hereare phrasesofgreat potential mplitude romwhich awyers nd judgeshave been able to extract ariousprocedural nd substantive estrictionson the powersof the states withoutreachingagreement n what thephrasesmean or their ramersntended.What, then,werethe ntentions f theframers f theseamendments?Is a definite nd final answerany morenearly possiblein these casesthan it is in the case ofthe intentions fthe original ramers?My ownanswerwould be no. I simplyam unable to imaginewhat types andquantitiesofrecordswould be needed to clinch any important oint nthe severalmajor problems hat arise. Neither can I imaginehow anyknownmethodofpsychoanalysis, ontent nalysis,orplain crystal-ballgazingappliedto suchrecords r to thepeoplewho eft hemcould givethoroughlyeliableand irrefutable nswers oncerning he ntentions fthese later framers.The transition hat needs to be made fromtheenduring nd objectivefactsof thewrittenwordsused to the fleeting,largelyunexpressed, nd subjective facts of the intentionsof framerswhopassed away many years ago is beyondhumancapacity to make.



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THE INTENTION OF THE FRAMERS 351The Pertinence oday of the ntentions ftheOriginalFramers. amnot one to discourage cholarly ttempts t historical nalysis n orderto get at, as far as is humanlypossible,what the framers f theoriginal

Constitutionand of the later amendmentshad in mind when theyformulated heir respectiveparts of the present Constitution.On thecontrary, think that such efforts re to be commendedand thatstudentsof the Constitution houldbe encouraged o read as widelyastime permits n the offeringsfhistorical cholarship.The nearermencan getto knowingwhatwas intended, he better. ndeed,thesearchforintentionss justified s a searchfor hemeanings hatthe framers adin mindfor hewords they used,but it is a search thatmustbe under-taken nhumility nd with an awarenessof ts greatdifficulties.At the same time, think that the intentionor intentions f theoriginalframers hould no longer be a main object of search or ofemphasis by students of the Constitution,nor a principal rule ofguidancefor the public authorities.For this conclusion offer everalreasons.1. If the Constitutionwerea contract ra treatywithdefinite artiesin continuing xistence who could claim specificguaranteesof rightsundertheagreement,henthe ntentionswithwhich hose partieswentinto the agreementwouldhave continuing mportance, lthougheventhen theywouldnot ordinarily verride he actual termsof the agree-ment.But the Constitution s not of this nature.It is not a contractbetween he nationalgovernmentnd thestates,ora contract rtreatyamongthe severalstates. t is a Constitution rdainedby thepeople oftheUnited States; and thepeople by their ontinued cceptanceof t ina sense ordain t aneweveryday. We, thepeople ... ordainand estab-lish . . The statements in thepresent ense.The Constitution oesbelongto theliving, nd not to thedead.2. However important he intentions f originalframersmay haveseemed at one time, he Constitution s a total set ofworking uleshasbeen so modified y the later framers s to givethe ntentions f theoriginalframersmuch less significanceoday. The Constitutionn thesecondhalf of the20th centurys a farcryfromwhat it was in 1787-1788. If intentions re important, nd I think heyare to someextent,then todaywe must consider he intentions fmanymorepeople,andnot ust those of theoriginal ramers.3. Insofar s the ntentions f theoriginal ramersre still mportant,the recordedevidence as to those intentionshas now been so fullyexploitedfor over 160 years by competentscholars that very littlereallynew and reliable nterpretations likelyto be distilledout of it.Of coursetherewillbe reinterpretationsrom ime to time,but insofar



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352 THE AMERICAN POLITICAL SCIENCE REVIEWas thereinterpreterseep close to whattheoriginal ramershemselvessaid and did, and use scientifically establemethodsofhistorical ndlegal analysis, no great new contributions o an understanding f theintentions f the originalframers an be expected.Severalthingsmighthappen to changethis udgment,however. m-portantcollections f etters,diaries, nd otherrecordsby someoftheoriginalframersmay yet be discovered.Furthermore,he methodsofcontent nalysismay become so improved s to become reliablyusablein the analysis of therecordedevidence,old as it is. If some improvedmethod fcontent nalysiscan be turned oward hediscovery fthe n-tentionsof the originalframers rom he recordsthat they eft, omefurther nowledge f those ntentionsmay be gained. should be happyto see both ofthese thingshappen-the discovery fnew evidence andthe improvement f themethodsofanalyzingthe evidence.4. Even if the new evidence and the new interpretation ointedtoward a considerable evision f present deas about what the originalframers ntended, they should not of themselvesresult in a corre-sponding change in the Constitution.As it stands today, the Consti-tution has been developed through a varietyof amendments, ourtdecisions,statutes,and practicesto meet the needs of the nation oftoday and tomorrow.Any new discovery bout the intentions f theoriginal ramers ould have littlemorethanantiquarian nterest oday.

Framers' Intention-William Anderson

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