The blawgosphere is abuzz with discussions of Nino Scalia’s first 54 pages of Heller, compared with Justice Steven’s dissent, in discerning what was meant by the Second Amendment.  The discussions center around one of those infamously controversial phrases, original intent.

While use of the term “originalist” causes many to convulse, consider that it isn’t much different that the common resort to “legislative intent” as we argue the meaning of run-of-the-mill statutes in everyday appeals.   Courts love to fall back on such arguments in determining what laws mean because it takes the onus off of them and places it on those old guys, the ones who passed it in the first place.  “We would like to conclude that the law should apply in an intelligent and meaningful way, but we are precluded by the intention of its framers.” 

But this resort to intent is invariably based on expressions that are of dubious reliability, although I can’t think of a single instance when a court recognized that laws, including the Constitution, was enacted in a political forum, and therefore the expressions of the framers as to its purpose, intent, meaning, may have been nothing more than a political sales pitch.

Dale Carpenter at Volokh, along with Orin Kerr, spent a great deal of effort discussing the conflicting sources upon which the sides in Heller based their originalist positions:

That Orin and I think it obvious and inevitable that the justices should as a matter of interpretive principle concentrate so heavily on what commentators, dictionaries and other usages of the 18th century had to say about phrases like “keep arms,” “bear arms,” “the people,” and the “militia,” may only indicate that he and I have bought very much into this method. But the fact that not just Orin and I, but also every justice on the Court, in this rare and pristine constitutional moment, grasped for originalism as at least a cover for their views indicates that something more profound has happened in our constitutional culture.

But no asks the question, what makes us believe that contemporaneous expressions which today are viewed as absolutely trustworthy, if not sacrosanct, were not total hogwash at the time?  While we flinch at the mention of the USA Patriot Act today, knowing full well that its selling point to the public was a total scam and that the Congressional expressions of purpose are utterly worthless from the perspective of understanding the “real” purpose of this mutt law, why do we think politicians were entirely trustworthy way back when?

One of the things that the majority and dissent in Heller makes clear is that there was plenty of old fodder for both sides to rely on to support their positions.  Yet we pretend today that there is a true expression of original intent, just as we pretend that the speeches given by Senators actually provide a reliable basis upon which to discern the meaning of legislation. 

My favorite example of a political sale pitch in the Federalist Papers.  It’s not that I don’t enjoy them, and haven’t used them whenever they serve my purpose.  It’s that they were meant to sell the Constitution like dog chow.  Madison (a/k/a Publius) would have claimed that it cures leprosy if it would help.  It’s not that Madison was a scoundrel, but that he thought that ratification was the best thing for the country and now had to sell it to the public.  But it’s a sale pitch.  And yet it provides a primary source for the interpretation of the Constitution.

Do you wonder whether Madison might have been more cautious if he realized that the Constitution would be interpreted hundreds of years later based upon his sale pitch?

We think of today as being a time of political extremism, but politics back in the 1780s was every bit as rough (and maybe more so) than today.  They were vicious, and lies and deception was typical to achieve their goals.  Sure, we’ve bathed our founding fathers in that white light of purity that makes them appear saintly, even though they were at each others throats constantly, but that doesn’t turn their every statement into gospel.  And yet, we rely on these statements today as unimpeachable proof of their purpose.

I don’t trust original intent, or legislative intent, or any other expression of a politician in the sale and marketing of ideas.  I don’t do it now, and see no reason to think that it was any better before my time.