As the 2020 presidential election approaches, we should be mindful of the possibility of Supreme Court vacancies during the next several years. We should remember that presidents work to appoint individuals who represent their political philosophy. Also, we need to remember that the Constitution is what the United States Supreme Court says it is. Therefore, it is important to know how a newly appointed court justice views how the Constitution should be interpreted.
One widely popular view is that the meaning of the Constitution should be determined by referring to the intention or the “original” meaning expressed by those who created it. But there are more difficulties than most people realize in determining the intent of the delegates to the 1787 Constitutional Convention.
Fifty-five delegates were present at one or more sessions of the convention, but some of them did not actually take part in the proceedings. Votes taken on some issues passed with narrow margins. What was said and the reasons given for the votes cast are mostly known from incomplete notes taken by James Madison. There was no single issue on which all delegates spoke, and a majority spoke on just a few issues. Constitutional scholar C. Herman Pritchett speculates many decisions were probably compromises that really pleased no one. Further, there is even more difficulty in determining the intentions of the delegates to the state ratifying conventions, which put the Constitution into operation. Uncertainty is even greater if we try to determine the intentions of those who elected the delegates to the state ratifying conventions. And to compound all that, we have to remember the search for original word meanings is as difficult or even more difficult than determining original intent.
When we ask for justices who will follow the original meaning of the Constitution, we must acknowledge all of the difficulties in understanding that original meaning, or question if we can even know it at all.