The Case for Original Intent

The Case for Original Intent
by JBS President John F. McManus

Only recently, a matter before the Supreme Court dwelled on what are called “recess appointments.” In the Constitution’s Article II, Section 3, the President is authorized to “fill up all vacancies that may happen during the recess of the Senate.” That is, without approval of the appointment by two-thirds of the Senate. The ordinary procedure in making appointments (for cabinet posts, federal judgeships, etc.) requires Senate confirmation. But if the Senate is in “recess,” the President can name individuals to serve in many high government posts temporarily. However, the Constitution states further that such appointments will “expire” when the Senate reconvenes.

Restoring the Rights of the States and the People by John F. McManus (click on photo to buy a copy)

“Restoring the Rights of the States and the People” by John F. McManus, 40 pages (click on photo to buy a copy)

During the period in question, even though the Senate had not been conducting normal business, a few senators had been avoiding a formal recess by holding what are termed “pro forma” sessions. These are brief gatherings of only a few minutes that accomplish nothing of note except that they do avoid establishing a recess. President Obama wanted some recess appointments to be declared “approved,” but some members of the Senate maintained that their body was still in session even if only “pro-forma.” The Supreme Court will decide.

While commenting on this matter, however, Justice Stephen Breyer weighed in as follows: “Over time, language in the Constitution takes on a somewhat different meaning.” He obviously believes that the Constitution evolves; that its meaning is not what was set down originally; and that new meanings of words can be applied when needed. If such an attitude prevails, one can wonder why anyone would ever want to rely on any written document.

Soon after he took office in 1801, Thomas Jefferson commented on this very point. He stated:

The Constitution on which our Union rests shall be administered by me according to the safe and honest meaning contemplated by the plain understanding of the people of the United States at the time of its adoption….

In other words, he upheld what is termed “original intent,” something that anyone who enters into a contract would rely on today. If a legitimate contract can be altered by one of its parties claiming that the meaning of its words has changed, then there is no real contract and somebody is being defrauded. So too is the Constitution a contract between the government and the people.

Jefferson expounded further on the importance of original intent when he urged that the meaning of the words in the Constitution should never be open to alteration. He cautioned against the very attitude expressed by Justice Breyer (who is not alone in holding such a view) when he wrote that “instead of trying what meaning may be squeezed out of the text, or invented against it, [all should] conform to the probable one in which it was passed.”

The Breyer attitude leads us to a government of men and away from a government of law. Unfortunately, the man-centered style of government has increasingly prevailed in our nation. Understanding this is far more important than how the Supreme Court will ultimately rule regarding recess appointments. Original intent is the only way any law, or any contract, should be considered.



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