It is one thing, of course, to claim that in seeking agreement the Framers used language that was open-textured and another that they themselves did not think their intentions should play a significant role in the interpretive process. It is tempting, in fact, to think that at precisely those points where the texts meaning is open to doubt, we ought to turn to what they originally had in mind.
It is, therefore, a matter of some significance that the Framers decided on the last day of the Convention (September 17, 1787) not to publish any record of their deliberations. They decided instead to entrust all papers to Convention President George Washington. Throughout the summer too there was a strict code of secrecy, a "gag" rule on all those in attendance. No one was to mention a word about the proceedings to anyone outside the Convention. If we expect arguments about Framers' intent to bring the meaning of the Constitution more explicitly to light, the Framers themselves were certainly quite resourceful in making it very difficult, if not impossible, for us to recover their intentions. James Madison, who kept the most extensive notes during the course of the Convention, also refused to publish his journal until after his death
or, at least, . . . till the Constitution should be well settled by practice, and till a knowledge of the controversial part of the proceedings of its framers could be turned to no improper account . . . . As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character.
Here from one of the authors of the Constitution we have direct evidence that the Framers themselves tried to block access to their deliberations in part because they did not wish their original intent to play an "authoritative" role in subsequent efforts to interpret the meaning of the text.
It could not have been clearer to Madison that whatever understanding members of the Philadelphia Convention shared about this or that passage of the Constitution, that understanding "could never be regarded as [a] . . .guide" in an effort to make sense of it. The original intent of the Framers ought not to engage us because the document they drafted was, quite frankly, not theirs. If intentions are to count for something, they must be the intentions of the people who approved it, not the intentions of those who proposed it.
This conclusion has real consequences for arguments about original intent. If there are problems with an attempt to recover the intentions of small group of authors, meeting together in the summer of 1787, those problems are now compounded by the practical difficulties of trying to figure out what went through the minds of the representatives who attended the various state conventions. These problems aside, however, it is necessary to note that, having shifted attention away from the understanding of the document shared by those in Philadelphia to the understanding of those who eventually adopted it, Madison did not let the matter rest. He went on to stress that the meaning of the Constitution was determined by an interpretive process that continued long after the Philadelphia and State Conventions had closed their doors.
In October 1986, Attorney General Edwin Meese spoke at Tulane University, where he made a distinction between the Constitution and Constitutional law. To distinguish them is necessary, he argued; to confuse them is to court anarchy. "The Constitution," he opined, "is - to put it simply but, one hopes, not too simplistically - the Constitution . . . Constitutional law, on the other hand, is that body of law which has resulted from the Supreme Court's adjudications. The point of Meese's distinction, as Gerald Frug of Harvard Law School has pointed out, "is that only the Constitution, not the decision of the Court, is the Supreme Law of the land." Meese's view of the Constitution betrays a resemblance to Reagan's somewhat simplistic and wistful view of the Bible. Both seem to think that these texts merely need to be read to be understood without interpretation.
But by insisting upon a distinction between the Constitution and Constitutional law, the Attorney General offered an opinion that is impossible to sustain not because of any failure in our powers of refinement but because the Constitution is to be found in constitutional law. This is less a confusion than the nature of the enterprise. To confuse the Constitution with Constitutional law, we would have to be able to identify its meaning apart from the history of its interpretations, including the constructions placed upon it by the people through their state conventions. But this cannot be done, and it cannot, not only because the drafters of the Constitution took steps to block efforts to recover their original intent, but because they expected the meaning of key clauses only to be settled by future "authoritative decisions" and "judicial determinations."
"Original Intent or How Does the Constitution Mean?" by Andreas Teuber
