A Necessary Myth

...At the time of its ratification in 1791 the establishment clause prevented the United States from doing what half of the 14 states then permitted—giving government aid to religion on a non-preferential basis...

...Whoever is unhappy with the rulings of the High Court complains that the mortals on the bench are acting like immortals, disrespectful of the will of the Fathers...

...The Notes James Madison took were not published until a half century after the Convention, with some revisions inspired by afterthoughts and with considerable selectivity reflecting Madison's own participation in the action...

...With Plato in mind, we may ask: "If original intent is a myth, which it largely is, is it not still a needful falsehood to give the aura of authority to the Court...

...Jurists have indulged in this sort of alleged mind-reading constantly to lend authority to their rulings...

...When a Bork (chief theoretician of originalism) and a Rehnquist (chief practitioner of the school) seek to base decisions on intent, they must make a double assumption: that those who enacted the law had a clear and common intention, and that the Court can tell what this was...

...This does not exist...

...In such political sin was the Bill of Rights conceived...

...Yet even if his Notes were accurate, they tell us that to inquire into intent borders on the comic: Since the central thrust of the Founding Fathers was to form "a more perfect union" out of the disjoined colonies, they resorted repeatedly to words that meant different things to different delegates with the conscious intention of using ambiguity to forge unity...

...To discover the legislative intent of the Framers it would be necessary to have—at the very least—a record of what went on at the Constitutional Convention...

...Nevertheless, in both cases, these highest authorities are repeatedly invoked by those who proclaim that what they decided was clearly the intent of the Creator or the creators of these United States...

...If that is true, why have so many Supreme Court opinions been based on the argument that they are the only conclusions possible because they are merely the current application of dicta voiced by the Fathers in 1789...

...In exploring these and other clauses in the Constitution, Levy delves into Madison's journals, into prevailing practices of the colonial governments whose constitutions contained similar clauses (sometimes verbatim), and into the arguments surrounding the ratifying conventions...

...The champions of original intent can be found on both the Left and the Right...

...Levy maintains that it is virtually impossible to ascertain original intent where the Constitution is concerned, and that judges who have attempted to dig up the alleged roots of some constitutional clause have repeatedly displayed a shocking ignorance of history...

...Levy pursues his mission with a zeal derived not only from his life-long love for the law but also from his dislike of two of the nation's leading originalists —rejected Supreme Court nominee Robert A. Bork and Chief Justice William H. Rehnquist...

...He also does this later in an assault on Rehnquist for a 1985 minority opinion in a church/state case, which held that too many earlier decisions were based "upon a mistaken understanding of constitutional history...

...This requires going back into history to show that Rehnquist is distorting original intent—a proper approach, yet one that forces Levy to fall back on original intent as he, superscholar of the Constitution, knows it to be...

...Dooley, explain: "Tis funny about th'Constitution...

...Because "the fostering of such a belief will make them care more for the city and for one another...

...Certainly his being the author of 26 books on constitutional law and the editor of the four-volume Encyclopedia of the American Constitution entitles him to speak as a maven on the Supreme Law of the Land...

...The Convention forbade a daily record for fear that the public might find out what it was up to and—out of distrust for any centralized power—descend upon the handful of colonial elite meeting in Philadelphia...

...At the moment, American conservatives are the complainers because they are unhappy with the decisions handed down by the "judicial activists" of the Warren and Burger courts, who —the charge runs—legislated from the bench and perverted the purposes of the Founders...

...For instance, in a brilliant chapter on the big question about religion and the establishment clause that I have already mentioned, he traces the history of the clause, examines state practice at the time, and reaches the following conclusion concerning the intent of the Framers: "Their experience told the legislators in 1789 that an establishment of religion meant not just state preference for one religion but also non-preferential support for many or all...

...They did not want a "bill of rights" at all...

...they simply wanted to fuss about the absence of specific rights so that the people would reject the Constitution and, thus, make way for that second convention where the anti-Federalists would prevail...

...Hardly a single one escapes ambiguity, including such seemingly obvious statements as "Congress shall make no law respecting an establishment of religion,' or "abridging the freedom of the press...

...Indeed, to read the minds of the Framers is more difficult than to read the mind ofGod, for He is One and they are amuddled multitude...

...The problem is less legal than psychopolitical, as Plato understood so well when, in The Republic, he had Socrates ask his disciple: "How then may we devise one of those needful falsehoods of which we lately spoke—just one royal lie which may deceive the rulers, if that be possible, and at any rate the rest of the city...

...The glorified Bill of Rights—the First Ten Amendments—was as much a part of this political process as the body of the Constitution it was ultimately tacked on to...

...To prove the nonexistence of an abstraction is no easy chore, though, as any argumentative atheist will testify...

...Much of the majesty that surrounds the words "Supreme Court" melts away...

...The writing of the Constitution was not an exercise in pure logic...

...When Rehnquist states that Madison did not require "neutrality on the part of government between religion and anti-religion," Levy declares bluntly, "Rehnquist was wrong," a statement he can only make if he knows what the "original intent" was...

...The Federalists countered by offering two highly intellectualized reasons for the omission: First, for the Constitution to grant rights that were inalienable to begin with was, in effect, to deny their innate, inherent, inalienable character...

...second, to list specific rights would suggest that other rights, not enumerated, were by their very absence being denied...

...In this superscholarly, tightly reasoned, punchy tome Leonard Levy sees the notion of "original intent" about the same way that an atheist sees God: nonexistent, a myth...

...Those elitists up there in Philadelphia just don't trust the people," an assertion that may have contained more than a grain of truth...

...If the Constitution does not embody a set of timeless principles that motivated those who created the United States, how is it different from any other piece of paper that has some law scribbled on it...

...It was a political act tainted and twisted by the prime need to create a country—e pluribus unum...

...But he is aware that such authority alone will not win him his argument, so he shifts the burden of proof to those who affirm that our Supreme Court should be guided by original intent: He examines their premises and then proceeds to demolish them...

...Madison outfoxed them...

...Original intent may be a myth —but it may be a necessary myth...

...Does the word "establishment" here mean that Congress shall not set up an "established" religion, like the Church of England in the United Kingdom, or does it mean that Congress shall make no law regarding religious establishments, such as churches or synagogues or mosques...

...The Wizard of Oz is simply a silly old country yokel with a hokey bag of tricks...

...While not omniscient, Levy comes fairly close...

...Levy's animus is so patent that the book might well be called Levy ? Bork/Rehnquist...

...Why did Socrates (Plato) want to invent such a myth...

...Much of Levy's book is an examination of its amendments...

...He kept his promise, drawing up eight amendments guaranteeing specific rights...

...The anti-Federalists—who were opposed to any unifying document because they felt it would trample on state prerogatives—pointed to the absence of guaranteed rights as a reason for the people to reject the Constitution...

...In so doing, argues Levy—quoting a study of intent by Jacobus tenBroek —these judges have inverted the judicial process, "describing decisions of the Court as having been reached as a result of a judicial research for Framers' intent, 'whereas, in fact, the intent discovered by the Court is most likely to be determined by the conclusion that the Court wishes to reach.'" In short, the judge decides what he wants to decide, then instructs some clerk to find a constitutional justification with a snippit of data from here and there to invent "law office history...

...Reviewed by Gus Tyler Assistant president, ILGWU To figure out the "original intent" of the men who framed the Constitution of the United States is akin to divining what God had in mind when he made Adam...

...During the years from 1895 to 1936, it was the Left that complained about the Supreme Court using the judiciary—to quote the patrician Brooks Adams—to "dislocate any comprehensive body of legislation whose effect would be to change the social status...

...The opposition called on the people to turn down the proposed Constitution to clear the way for a second constitutional convention...

...The capitalist, I infer, regards the constitutional form of government which exists in the United States as a convenient method of obtaining his own way against a majority...

...Does "freedom of press" mean that publications may say anything they please with impunity, or does it mean they may publish without prior censorship but be subject to criminal libel if they print what is not fit to print...

...Without it, the nine persons sitting on the highest bench are merely nine persons trying to impose their personal views on the nation...

...And when the interpretation invoked " original intent," mused Dooley, it was "what some dead Englishman thought Thomas Jefferson was goin' to mean when he wrote th' Constitution...

...He concludes that there is no discernible, definitive, defensible "original intent...

...When the anti-Federalists found out what Madison was up to they were furious...

...While the massive evidence in this book demonstrates rather definitively that Justices who invoke original intent generally base their conclusions on sloppy historical research, conducted selectively to serve their prejudices or predilections, it is not likely that the Court will abandon the habit when writing decisions...

...Original intent is, to use James Harvey Robinson's definition of rationalization, not the real reason but merely the good reason...

...Faced with this threat, the ever wise and wily Madison set about persuading the voters he would make sure, in the very first Congress, that legislation was enacted to amend the Constitution by adding a Bill of Rights...

...How can you demonstrate that God does not exist unless you are omniscient and your all-knowingness enables you to conclude that, after a thorough search of the universe, you have found no God...

...But Levy rests his case on "original intent...

...Levy attacks Rehnquist's slipshod and self-serving reading of constitutional history to prove that a strict constructionist, like the Chief Justice, is really a very loose constructionist who is using the sheep's clothing of original intent to hide the wolf of judicial activism embodied in his rulings...

...The author insists that Rehnquist's "pernicious opinion in that case, endorsing the power of the United States to support religion financially, is utterly baseless...

...Itreads plain, but no wan can undherstant it without an interpreter...

...The end product was more the child of necessity than of neatness, a hodge-podge of compromises to serve the moment...

...Likewise, how can you show that there is no such thing as original intent unless you are omniscient in the universe of constitutional law...

...Then he went a step further with the Ninth Amendment, stating that "the enumeration of certain rights shall not be construed to deny or disparage others retained by the people.' And to satisfy the states-righters he came up with the Tenth Amendment assuring that "powers not delegated to the United States, nor prohibited by it to the states, are reserved to the states respectively, or to the people...

...Despite the fact that Levy's finding seems well-founded, Rehnquist would disagree totally...

...Finley Peter Dunne had it right when he had his sage bartender, Mr...

...Although the fundamental thrust of Levy's argument is that no one can really determine original intent, he finds himself—willy-nilly—doing precisely that in his account of how various clauses came into being...

...The anti-Federalists said, "Poppycock...

...The voices from the bench are no longer the voices of the Fathers reanimated for our times...