There is a person who comments on my blog periodically with whom I disagree various times. But, the highest compliment that I can pay is that he makes me think. He makes sound arguments. He calls me to account. He keeps me from flights of unthinking rapture in my blog posts. Recently, he again challenged me in a blog post from two days ago in which I commented that I do not believe in original intent. One of the comments he made was [edited for brevity]:
… all framers, for sure and ratifiers, unless they didn’t read it (no surprise there) from 1787 through 1992 knew what they wrote or adopted and knew exactly what they intended the law to represent and to do.
The function of the Supreme Court is to interpret congressional laws and determine their constitutionality. But if such interpretation is based on the justices personal biases then having a constitution becomes meaningless because we become an oligarchy with the third branch of government becoming the de facto law makers. This is precisely what the original framers were intending to avoid. …
I reiterate, the proper way to address these issues is by constitutional amendment. Nine amendments (11th, 12th, 13th, 14th, 16th, 17th, 20th, 22nd and 25th) changed the original Constitution, one, the 21st, negated another, the 18th. This is the proper way that a constitutional democracy should operate. …
I hope I do not misinterpret him when I say that he is arguing for a statutory interpretation of the Constitution. That is, he is arguing that the role of the Supreme Court is to interpret strictly within the guidelines set by established law, as approved by the appropriate authority (local, State, National). I would posit (and hope he comments) that he would argue that if a law does not address a certain issue that the court is constrained to say that there is no law that covers this particular circumstance, and thus the court is not able to render any decision.
For instance, last month the US Court of Appeals for Washington, DC, ruled (in an under-reported case) that the IRS had no authority to regulate tax preparers. “In the 125 years after the law’s enactment, “‘the executive branch never interpreted the statute to authorize regulation of tax-return preparers,’ U.S. Circuit Judge Brett Kavanaugh wrote today for the panel. The law ‘cannot be stretched so broadly as to encompass authority to regulate’ preparers, the court said.” Though rare, there have been cases in which a court has decided that they do not have the authority to even rule on a matter. However, those type of decisions can be almost counted without running out of fingers and toes.
Why are there not more of that type of ruling if a statutory interpretation was meant to be the original law of the land? Well, because of the Seventh Amendment in the Bill of Rights. It adds a very important dimension to court rulings that is missing in many of the arguments presented by today’s modern “original intent” supporters.
The Seventh Amendment in the Bill of Rights states:
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
This is the only place in the Constitution in which the principle of common law is specifically mentioned. However, precisely because it was one of the original amendments in the Bill of Rights, the mention of common law at this point in the Constitution makes it clear that, just like other parts of the Bill of Rights, this mention of common law was meant to correct something that was missing in the original Constitution. What was missing? Well, first let’s ask, “what is common law?”
Well, there are various explanations that can be found. Some of them are:
… the part of English law that is derived from custom and judicial precedent rather than statutes. Often contrasted with statutory law.
The principles and rules of action, embodied in case law rather than legislative enactments, applicable to the government and protection of persons and property that derive their authority from the community customs and traditions that evolved over the centuries as interpreted by judicial tribunals.
In the United States, a body of unwritten laws based on precedents established by the courts. Common law is used in deciding novel cases where the outcome cannot be determined based on existing statutes.
The third definition listed is the key one for our understanding of court rulings and for the proper understanding of the role of the Supreme Court, and subsidiary courts, in the application, not simply of law, but in the deciding of “novel cases” that reach the courts. It is a system that we inherited from England and one that the Founding Fathers ensured was enshrined in the Constitution when they realized that the Constitution, as written, needed some quick corrections before being enacted. Those quick corrections were the Bill of Rights, the very amendments that establish common law and allow the Supreme Court to have latitude in its rulings.
It is important to understand that common law was not a novel creation of the Founding Fathers. It was part of the heritage of English law, including the Magna Carta, that was passed on to us from our English heritage. We do not have a Napoleonic—or other—system of justice. Our system of law is based on both statutory law (our inheritance from the Magna Carta) and on common law (the English recognition that the laws would grow lengthy and intolerable if we did not grant the courts the right to rule on novel situations or to use common sense in interpreting the law. Common sense and common law are synonymous.
From the time in which our Constitution was approved, we have NEVER been a country that relied merely on statutory law. We have ALWAYS been a country that relied on both statutory law and common law, as spelled out in our Constitution. That does not mean that it has always been applied in a popular manner. But, it does mean that there is no Constitutional ground for claiming that the role of the courts is to merely interpret existing statutes. That was corrected in the Bill of Rights before our Constitution was ever adopted.
===MORE TO COME===