Why the “Founders’ Intent” doesn’t matter
“What was the Founders’ intent?”
This is a favorite question for people to ask when discussing the Constitution — especially the Second Amendment, where arguments over the meaning of the “militia” clause and over the changing nature of guns over 250 years are de rigeur. The problem with these arguments isn’t that one side or the other is right: the problem with them is that they’re not even wrong. They are debating a completely meaningless question.
The latest context for this is a gun which may or may not have been invented by Joseph Belton in 1777. That year, he sent a letter to the Continental Congress, offering his newly-designed “repeating flintlock” gun to the Army: a gun which could, he said, fire as many as twenty balls in a matter of five seconds. This gun has taken on importance in political disputes because it would be evidence that the Founders were aware of the possibility of automatic weapons, and wrote the Second Amendment fully conscious of that. This particular dispute was shaken up today, when journalist Adam Weinstein claimed that the gun was an elaborate hoax penned by his grandfather, and never existed at all.
The Internet is full of chatter about this claim, and those who care about it may want to read David Kopel’s article explaining why it’s factually irrelevant: there were repeating guns long before that.
But the more important thing about this argument is that the Founders’ intent is irrelevant to this discussion altogether.
To understand why, let’s imagine we had the most perfect lens possible into the Founders’ intent: namely, a device which could physically conjure the spirits of all fifty-five delegates to the Constitutional Convention into a room to hear a case at hand and offer their wisdom.
If anyone managed to do this — with or without the spectral Delegates first having the chance to become acquainted with 228 years of intervening history — they would probably hear a very interesting debate. What would some of the great political thinkers of the late 18th century say, if posed with these present problems? Which opinions would they side with, which aspects of the political turmoil of the 1750’s and on would be most emotionally resonant for them? Which sides would each person take, and which arguments would they favor?
The one thing this would almost certainly not do is settle anything. It would simply bring 55 additional voices into the room, and everyone in today’s debates would be able to find at least one person to side with.
If physically having the Founders present wouldn’t simplify the decision, why do we believe that their writings or debates do?
The normal use of “Founders’ intent” in law is a sort of extension of “legislative intent” — that fallback of courts when neither the blackletter text nor the case law is clear, to try to figure out just what Congress meant by a statement. But in questions of legislative intent, the legislature is more or less still there, and is free to opine further on the matter (by legislating) if they so wish. Its use is a method by which the courts can pressure Congress to be clear in their phrasing and communication, so that there is no opportunity for confusion.
The Founders’ intent, on the other hand, is invoked differently: the Constitution, we imagine, was handed down by wise elders, and it is our task to try to interpret it within the bounds that they set. To move those bounds would be a rare and unusual thing, only possible in the formal context of a Constitutional amendment.
This is not the way we think about any other legal text. The interpretations of statutes are not only changed when there are new laws; the primary job of appellate courts is precisely to clarify and refine those interpretations, balancing the need to handle new cases with the need for interpretational stability over time. No legislator or group of legislators, no matter how ancient, is allowed to determine the meaning of a text beyond what they already set down in the formal record.
The way we treat the Founders is more like the way we treat divine revelation: a scripture to be measured against, not itself measured. But the Founders were not divine! We often forget that the reason their legacy is so important is that they were the first to do many of the things they did. The Constitution represents the pinnacle of political science of the late 18th century, the very first attempt at democracy on a large scale without underlying monarchy, the template and basis for all attempts which followed it.
Which is all a fancy way of saying, the Founders were making it up as they went along; they had no idea if it would work or not, and left behind a legacy of arguments which ended with “This will probably end badly, but let’s try this and fix it on the fly later on when we figure out what’s broken about it.”
The fact that this worked as well as it did is a miracle, and a testament to their skill. But it is the exact opposite of divine revelation: it was a messy and ad-hoc work of political engineering, held together with hope and duct tape.
Because of this, asking whether the Founders were aware of the existence of automatic weapons is simply bizarre. Let’s say you showed up at the Convention with an M-16; they would most certainly have debated it, and they would have come up with some kind of answer, but there is nothing which should make us believe that their lack of personal experience of the 19th, 20th, and 21st centuries would make their judgment about these matters better than our own.
The interpretation of the law changes slowly with good reason: predictability is one of the most important values which a system of law (rather than ad-hoc rulings) provides to society. There is every reason that court rulings should take precedent, all the way back to the Constitution and even before, into careful account. But there is no reason to privilege this one aspect of precedent above all others, or to raise the wisdom of our imagined version of specific historical figures among all others.
As E. L. Doctorow said, if we treat the words of our ancestors as a kind of immovable, divine revelation, we are “reverencing something between ourselves and God:” that is, committing idolatry. We may regard the Founders as wise (or sometimes foolish), but they were men, mortal men, and they had far less experience to go on than we do. Even were they giants a hundred times our height, we would still see farther than they did, standing on their shoulders.
The Founders’ intent is an interesting historical item, and may occasionally serve in the same role as legislative intent — but it has no fundamental claim on being the “true” meaning of the Constitution, and never has.