May/June 2002

ARTICLE TOOLS

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"Original intent" is a game constitutional lawyers and political theorists love to play. It can usually be won by playing a single card, marked "slavery." One has only to point to the protections the Constitution originally conceded to slavery—its tolerance of the slave import trade, its willingness to grant the slaveholding states an extra three-fifths worth of representation in the Federal Congress based on their slave populations, its requirement that states return fugitive slaves to their owners—to present a take-all demonstration that the original intentions of the framers of the Constitution are tainted, and consequently useless to modern federal jurisprudence. In the words of constitutional historian Paul Finkelman, the Constitution was a "proslavery compact," and in that case, all notions of limiting judicial interpretation to the "original intent" of the framers become guilty by association.1

This has opened the way for modern constitutional theorists like Charles L. Black, George P. Fletcher, and Mark Tushnet to declare that the Constitution of 1787 is a dead letter, that what we today call the Constitution was only reborn with the Fourteenth Amendment, and that its interpretation is a constantly evolving process, moving inexorably toward a future of Kantian (or Rawlsian) egalitarian absolutism. It also opens the way for the advocates of slave reparations to insert their claim that the Constitution's protections for slavery make the federal government liable for reparations payments, since the Constitution presumably rendered the federal government the central culprit in the establishment of slavery in the United States. And it offers a comforting sense of communion with the most radical heroes of abolitionism—William ...