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ORIGINAL INTENT – INTENTIONAL ORIGINS [1]

['Black Kos', 'Thom Hartmann', 'Chitown Kev', 'Belinda Ridgewood']

Date: 2026-05-19  

I had been toying around this idea for years, made a few false starts but it was the death of Scalia that prompted me to complete it. Well, MOSTLY complete it. What I am publishing here is not exactly what I wrote in 2016.It originally included a very graphic description of a sexual fetish that properly expressed my absolute contempt for the man and his disciples. Eventually, however, I was convinced that I should leave that part out of my finalized work. {SHRUG} It is what it is.

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ORIGINAL INTENT – INTENTIONAL ORIGINS

Rhys M. Blavier

©2010, 2012, 2016, 2026

Original Intent: “The method of interpreting the U.S. Constitution according to the literal intentions of its authors is known as original intent. Advocates of this method of constitutional interpretations claim that judges are obligated to find out what the framers intended by the words they used in writing the Constitution, Robert H. Bork, a legal scholar who favors original intent, stated in 1984, “It is necessary to establish the proposition that the framers’ intentions… are the sole premise from which constitutional analysis may proceed.”

Oxford Guide to the United States Government

(http://www.oxfordreference.com/view/10.1093/acref/9780195142730.001.0001/acref-9780195142730-e-636)

A judicial giant died recently… well, okay, maybe not a giant, per se; ogre or troll might describe him more accurately… an intellectual bully, in any case. Antonin Scalia has vacated his seat on the Supreme Court in the most certain of ways. Like him or not, Scalia was a true intellectual, it’s one of the traits that made him so effective in helping to shape the modern Court, and American law. There are now, and will be long into the future, many words written about Scalia and his place in American judicial history. Perhaps what follows might be a few words among those many.

One of Scalia’s core beliefs regarding constitutional interpretation was the doctrine known as ‘original intent’, and he spent 30 years on the Supreme Court advancing that idea to help spread conservativism across America, not unlike rats spreading the bubonic plague. Original intent is a term that has been used a lot since Reagan’s first term in office, especially when and after he nominated Robert H. Bork to the Supreme Court. It is now a favorite cry from movement conservatives, and is most noticeable coming from the far-right neo-cons, the religious fanatics and the tea party. Also, of a lot of ignorant people who apparently have never, themselves, actually read The Constitution.

The original intent screed is mostly heard from those on the Christian conservative far-right who seem to desperately want to keep America perpetually mired in the culture of the late-18th Century. You know, those happy times when science had to conform to the dictates of religious mythology and dogma; when public health meant covering your nose when you walked past the houses of the diseased and dying, and dead; when education had to be worked around the agriculture calendar; when anyone could walk into the wilderness and make a place of their own so that they could die young of malnutrition, minor infections, or Indian attacks; when social security meant pushing out enough kids who managed to survive into adulthood that they could take care of you in case you managed to survive long enough to become old and infirm; and when a black man couldn’t be President, no matter how well he danced, sang or narrated documentaries about, say, penguins.

Two other groups who rely heavily on original intent / Framers’ intention are those who cannot, seemingly, have a political discussion without dropping a noun, a verb, and states’ rights into every sentence, and those the-2nd-Amendment-means-unlimited-freedom-to-buy-gun,-an-absence-of-any-gun-control-regulations,-and-no-gun-violence-accountability fetish types (ammosexuals) who see the results of peaceful elections which they don’t like as reason enough to buy more guns and ammunition so that they can threaten to kill liberals with them.

I had never even heard the term original intent until Ronald Reagan nominated Robert Bork for the Supreme Court in 1987. I just couldn’t understand why everyone was so angry, or why so much time was being wasted on talking about inkblots and other distractions. It simply made no sense to me and I didn’t see why it really mattered who sat on the Supreme Court, anyway. Yes, back then, I had read The Constitution and I knew what I had been taught in government classes about the role of the Supreme Court. Still, this original intent idea must be pretty important, right? Because so much effort is made invoking its debate-ending finality (i.e. – the “I played the original intent card, so you lose and have to shut up, I’m not listening to you! lalalalala” tactic).

Since then, it has become de rigeur for any real conservatives to demand that all courts and judges should make decisions based only on far-right conservative declarations of original intent. Any judge who does NOT use those standards of original intent as their guiding principle for interpreting The Constitution can simply be written off by those conservatives as activist judges… which the far-right seems to think is, in and of itself, something bad without explaining why… but only when it is judges making LIBERAL decisions that they don’t like. You never hear them make the same accusations about CONSERVATIVE judges being activists who legislate from the bench but do so to advance conservative causes or beliefs, or to throw out “liberal” legal precedents. Apparently, an activist judge is any judge who makes a decision or ruling that the conservatives don’t like.

For many years now, I have been saying that, even if we accept the argument that The Constitution is NOT a living document, there are many constitutional questions for which we can easily know what the original intentions of the Framers were. While we might not ever be able to agree on what the Framers’ personal unwritten or unspoken ideas were regarding The Constitution, we can focus on what they intentionally left OUT of The Constitution, for example. We don’t have to wander in the darkness trying to find answers and relying on the guidance of those who claim to be the only ones with a light.

There are three primary ways we can understand the original intentions of the Framers. The first is to look at the Articles of Confederation (AoC). The Constitution was not the first attempt to create a national government for the United States. That honor goes to the AoC. By pretty much any interpretation, the AoC was a failure BUT, it was a failure that the Framers learned some valuable lessons from. So, if we want to understand the original intentions of / for The Constitution the first thing we can do is make direct comparisons between The Constitution and the AoC. Items that were carried over from the AoC into The Constitution, and there are more than most people realize, are things that we can know they thought were important or already done right. Likewise, we can assume that anything that was in the AoC that was NOT incorporated into The Constitution were principles and ideas they clearly rejected. We can also infer this relationship between the two documents from the wording of the Preamble of The Constitution. The Constitution was an effort to create a “more perfect Union”. This phrase, however, only makes sense if we realize that the “less perfect Union” was the AoC. So, the Framers clearly state up front that the document they created in 1787 was intended to be better than the previous attempt.

Just a few examples of using the AoC to determine the Framers original intentions are:

1.) Both documents make reference to mutual needs for “common defense” and “general welfare”;

2.) Both say that citizens are “Entitled to all privileges and immunities” of the citizens “in the several states”, and that every state will give “Full faith and credit” for records, acts, and judicial proceedings in every other state;

3.) Both give the government the duty to establish post offices; and so on

We can, thus, conclude that the Framers believed those things were important and necessary. There are several other provisions that are common to both documents but, in high profile today, we should focus on what both say about militias and arms

Article VI of the AoC says that:

“… every State shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.” [emphases added]

Article I, Section 8 of The Constitution includes among the duties of Congress:

“To make Rules for the Government and regulation of the land and naval Forces”;

“To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections, and repel invasions”; and

“To provide for organizing, arming, and disciplining the Militia and for governing such part of them as may be employed in the Service of the United States, reserving to the States respectively, the appointment of the Officers, and the Authority of training the Militia, according to the discipline prescribed by Congress” [emphasis added]

I don’t know about anyone else, but that sure sounds to me like they have told us what they meant by “a well regulated militia.” It also reads to me like they are telling us what they meant when they used the words arms or armed.

So, what are some of the examples of what the Framers rejected from AoC when they wrote The Constitution? Well, first of all, the AoC was expressly focused on the relationship between the states and Congress, while The Constitution was written regarding the relationship between the national government and the people. The AoC begins:

“To all whom these Presents shall come, we the undersigned Delegates of the States affixed to our Names send greetings.

“Articles of Confederation and perpetual Union between the states of New Hampshire, Massachusetts-bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia.”

In contrast, The Constitution begins with:

“We, the Peopleof the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

Differences between the two documents include how the documents would be ratified, how to amend the documents, how to make laws, and votes / representation in Congress. The AoC only provided for one branch of government – Congress, the legislative branch, with no provisions for either an Executive or Judicial branch. The AoC makes no provision for interstate commerce while The Constitution includes the commerce clause. The AoC made no provision for naturalization of people not born in the United States while The Constitution tasks Congress with the duty to “establish an [sic] uniform Rule of Naturalization.” The AoC makes no provision for adding states, other than Canada’s option to join at their own desire, while Article IV of The Constitution specifies how new states can be admitted, how to govern territories, and guarantees every state a “Republican Form of Government.”

Among the most important differences are representation in Congress, where sovereignty rests, and the fundamental protection of the people for established liberties, freedoms, and rights. Under the AoC, it was the states which were represented rather than the people. Article V of the AoC includes:

“… delegates will be annually appointed in such manner as the legislatures of each State shall direct,”

“… a power reserved to each State to recall its delegates, or any of them, at any time within the year, and to send others in their stead for the remainder of the year”

“… no person shall be capable of being a delegate for more than three years in any term of six years”

The Constitution, of course, provides for direct elections of members of Congress, for set terms of office, with no term limits on how long a person can serve in Congress. Even when Senators were chosen by state legislatures, the states couldn’t just recall or replace them during their six-year term of office. Under the AoC, the states, themselves, determined how many delegates they would send to Congress (no less than two, nor more than seven) but, regardless of how many delegates they sent, each state only got a single vote on any matter before Congress. The Constitution, of course, provides for proportional representation in the House, based on population size, with each Representative getting one vote in that Chamber, while in the Senate, each state is equally represented by two Senators who each, also, get their own votes.

The issue of governmental / state sovereignty in the United States is a complex one, and has been one of the longest running and most contentious items of disagreements between the colonies / states regarding any form of national union. Although the states have always jealously guarded their co-equal status, this issue first directly, and negatively, impacted the possible creation of a union between the states in 1754, with the rejection of Ben Franklin’s Albany Plan of Union. One of the primary issues which kept that plan from going anywhere was that the states were afraid of losing some / any of their territory, power, and/or sovereignty. This topic caused anger and even hatred in the Continental Congress, in the creations of both the Articles of Confederation and The Constitution, with the Kentucky and Virginia Resolutions, the Nullification Crisis, the Dred Scott case, the Civil War and Reconstruction, the government’s increasing willingness to create laws, regulations and federal agencies to protect worker’s rights and safety, food safety, and economic well-being, the Great Depression and the New Deal, and the Civil / Voting Rights period. It still continues today over questions such as abortion rights, gay marriage, school prayer, and even federal land management.

The second place that we can look if we are searching for the Framers’ original intentions is the Preamble of The Constitution, itself. Let me, again, give the precise wording of the Preamble:

“We, the People of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

Read those words carefully. Then, remove the framing details. Now, it reads “… in order to [accomplish specific objectives] … [we] ordain and establish this Constitution.” So, by their own words, The Constitution was written with the specific INTENTIONS to:

“form a more perfect Union”,

“establish justice”,

“insure domestic tranquility”,

“provide for the common defense”,

“promote the general welfare”, and

“secure the blessings of liberty to ourselves and our posterity”

In this light, the Preamble, rather than being meaningless, pretty words, becomes the operative American / Constitutional mission statement. Thus, whenever we want to try to understand what the Framers intended in any constitutional question or issue, all we need to do is ‘filter it’ through the Preamble. So, is healthcare legislation constitutional? Well, it would help promote the general welfare, wouldn’t it? Can we legislate limits on gun rights? The proliferation of guns in America, the resulting episodes of gun violence, and the growing list of victims of that gun violence certainly disturbs the domestic tranquility of the United States, right?

The third way that we can know what the intentions of the Framers were is to read what those same men wrote on the issue. While we don’t have any minutes or official notes from the Constitutional Convention, we do have personal notes kept by delegates, the most important and detailed of which are those of James Madison. In addition, Alexander Hamilton, James Madison, and John Jay wrote the crucially important Federalist Papers, which were intended to explain to the American public the meaning and purposes of The Constitution.

So, when we wonder what the original intentions of the Framers were, we can find and read the debate notes, or we can read The Federalist Papers, or we can compare and contrast The Constitution with other relevant works, or we can even just ignore all of that and assume that because the official minutes and notes from the Convention were ordered destroyed at the end of the Convention that the Framers didn’t want the future to know what their intentions were – which supports the idea of an intention to create a living document.

Finally, for those who would argue that what I have advocated here is not how The Constitution is read and/or interpreted, that it is not how Congress or the Supreme Court determine constitutionality let me just say “I know”, but that doesn’t mean we can’t advocate for shifting from the present interpretations to more… liberal… and federally focused interpretations. Isn’t that, in fact, what conservatives did when they developed the original intent theory that they insist be utilized, use it to try to narrowly benefit their own ideology?



Talk amongst yourselves. Let me know what you think.

Peace.

[END]
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[1] Url: https://www.dailykos.com/stories/2026/5/19/800041606/community/original-intent-intentional-origins-2/

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