By McKay Cunningham

Lawyers and non-lawyers alike revere the Constitution as a document that embodies the nation’s greatest values. It has been called America’s civic religion. In times of political discord, the Constitution unifies those with opposing views because all agree that the Constitution is the proper legal authority. The disagreement is not whether the Constitution should apply, but how it should be interpreted.

Open-ended phrases in the Constitution like the promise of “equal protection” and “due process” have allowed recognition of several civil liberties not expressly included in the document. The Ninth Amendment recognizes that rights not listed in the Constitution are not necessarily denied: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”[i]

But how does the Court identify non-enumerated rights, and how does the Court determine who is protected and who is not?

In large part, it is a question of interpretation. If the Constitution is interpreted as a static document that only reflects the intent of those who drafted it, then the document rejects values of equality, liberty, and inclusion. If the Constitution is interpreted as a “living document” that reflects the values identified in the Preamble, including liberty, democratic governance, justice, and the promotion of general welfare, the Constitution is truly an egalitarian document.

The original Constitution

The Constitution, from the perspective of those who wrote it, failed to embrace or advance diversity. It centralized power in the dominant demographic of the time, white men. Only white men could meaningfully participate in the three branches of government because voting was reserved for white men alone. And voting, in a representational democracy, is the currency of power.

Not only did the framers reserve power for themselves, they expressly denied it for others. Several provisions in the original Constitution institutionalized the nation’s greatest tragedy. Article I, §9 prevented Congress from stopping the importation of slaves until 1808. Article V barred that same provision from being altered by constitutional amendment. And Article IV, §2 – the Fugitive Slave Clause – required the return of escaped slaves, specifically invalidating laws in free states that would have protected them.

It is tempting to lay the blame for slavery at the feet of the southern states, whose economy depended on slave labor and who would not have ratified a Constitution without express protections for slavery. But many of the most influential drafters at the Constitutional Convention were slave owners, including George Washington, John Rutledge, and James Madison – the last of whom is regularly identified as the “Father of the Constitution.”

The framers’ intent

Two-hundred and thirty years ago, when only white men could vote, there were no automobiles, web sites, cell phones – or any phones for that matter. Religious practice was primarily Protestant and more homogeneous than religious practices in America today. Back then, for example, Catholics endured virile anti-Catholic bias. In the late 18th Century, nothing protected homosexuals from state-supported discrimination. Women could not vote, or work in several professions, or own property in many instances.

Interpreting the Constitution by relying on the intent of those who drafted it has resulted in exclusion and oppression of people of color, women, atheists, homosexuals, and a raft of other “non-traditional” communities. The framers, for all their wisdom, were flawed – as is every generation – and a formalistic devotion to “framer intent” when interpreting the Constitution damns society to repeat those flaws.

Framers’ intent applied to race

Nevertheless, many politicians and jurists have interpreted the Constitution by relying on the framers’ intent and the society of 1780’s America. This construct, this devotion to the framers’ intent when interpreting the Constitution, has been embraced by the Supreme Court at times throughout our constitutional jurisprudence.

1. Framers’ intent applied to race before the 14^th Amendment.

In Prigg v. Pennsylvania, the Court upheld the Fugitive Slave Clause: “[W]e have not the slightest hesitation in holding that, under and in virtue of the Constitution, the owner of a slave is clothed with entire authority, in every state in the Union, to seize and recapture his slave.”[ii]

Fifteen years later, in Dred Scott v. Sandford, a former slave petitioned for freedom after his owner died in a free state. The Court denied Scott’s plea, relying on the framers’ original intent. The Court said that those imported as slaves “were not intended to be included under the word ‘citizens’ in the Constitution . . . . On the contrary, they were at that time considered as a subordinate and inferior class of beings . . . .”[iii]

2. Framers’ intent applied to race after the 14^th Amendment.

The Civil War and the ratification of the 13^th, 14^th, and 15^th Amendments ended slavery and expanded the right to vote despite “race, color, or previous condition of servitude.”[iv] The 14th Amendment targeted states that had racially discriminatory laws, promising “the equal protection of the laws” to all persons. “Equal protection” is an ambiguous phrase and could be understood to include a wide variety of people within its scope. But time and again, the Court confronted that ambiguity by adhering to the framers’ intent. To understand what the framers had in mind, the Court often inspected the context and culture of the nation at the time the language was drafted.

In 1868, when the 14th Amendment was ratified, society was racially segregated in the north and the south. Every southern state had enacted laws separating the races in virtually every aspect of life, from schools to bathrooms, to water fountains. When state segregation laws were challenged as violating the Equal Protection Clause, the Court initially upheld racial segregation and pointed to the framers of the 14th Amendment as justification for doing so. According to the Court in Plessy v. Ferguson, “Equal Protection” only meant that states cannot draft laws that intentionally harm racial minorities.[v] Requiring racial separation, by contrast, was fine because that was the norm in 1868, when the framers wrote the 14th Amendment.

Framers’ intent today

At least five current Supreme Court Justices interpret the Constitution by looking to the framers’ intent. The late Justice Antonin Scalia, for example, said that the 14th Amendment and the Equal Protection Clause do not protect women: “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant.”[vi]

Justice Thomas also relies on the framers’ intent when interpreting the Constitution. In a 1995 decision, Thomas wrote that when interpreting the Constitution, “we must be guided by their original meaning, for the Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now.”[vii]

 Justices Thomas and Scalia are likely correct when they assert that the framers intended no protections for women when the Constitution was adopted nor when the 14th Amendment was adopted. Four years after the 14th Amendment was adopted, the Court upheld a law barring women from becoming lawyers.[viii] Two years after that, the Court upheld a state law that allowed only men to vote.[ix] Even after WWII, the Court continued to allow gender discrimination based largely on the notion that the Constitution must be interpreted through the eyes of the framers. In a 1948 decision, the Court upheld a law that prevented women from bartending unless the woman was the wife or daughter of a male who owned the bar.[x]

If the Equal Protection Clause must be interpreted through an 1868 lens, as Justices Thomas and Scalia posit, then Equal Protection means nothing for women, homosexuals, children born out of wedlock, non-citizens or anyone other than people of color.

Framers’ intent and inequality

Reading the Constitution as a static document, as a snapshot of value judgments popular in 1789 (Constitution), 1791 (Bill of Rights), or 1868 (14th Amendment), entrenches inequities. It is not surprising that no woman has been elected president and only four have served on the Supreme Court, all of whom were appointed after 1980. It is not surprising that over 95 percent of executive positions at Fortune 500 companies are still held by men and that women’s wages are typically 75 percent of men’s wages.

And it is not surprising that one in three African American children are born into poverty, that much less is spent on the average African American’s elementary and secondary schooling than on the average white child’s, and that at every age, African Americans have a higher mortality rate than whites.

Other Interpretations

The Supreme Court does not always rely on the framers when interpreting the Constitution. Some of the most revered Supreme Court cases are those that extend fundamental rights and civil liberties beyond what they were in 1789 or 1868. In Brown v. Board of Education, the Court rejected the rationale relied upon in Plessy v. Ferguson and invalidated racial segregation in public schools.[xi]

In Loving v. Virginia, the Supreme Court struck Virginia’s law criminalizing interracial marriage. It did so, despite the framers’ intent. Laws barring interracial marriage were common in 1868. Indeed, Virginia argued as much, positing that “the Equal Protection Clause, as illuminated by the statements of the Framers, is only that state penal laws containing an interracial element as part of the definition of the offense must apply equally . . . .”[xii] The Court could strike anti-miscegenation laws as unconstitutional only by ignoring the Framers’ intent.

Likewise, no protections existed in the late eighteenth century for consensual homosexual activity. Nevertheless, the Court recognized such constitutional protections in Lawrence v. Texas.[xiii] In a series of cases, the Court has extended constitutional protection for gay marriage, even though such protections would have been foreign to the framers.

An inclusive interpretation

If the Constitution is not interpreted by the framers’ intent, how should it be interpreted? Jurists often gravitate to a theory grounded in the framers’ intent because it is understandable. Several canons of interpretation require lawyers to divine legislative intent when interpreting statutes. Doesn’t it make sense to do the same with the Constitution? Moreover, if originalism and the framers’ intent should not drive constitutional interpretation, what should?

When determining whether to recognize a new fundamental right stemming from the open-ended Due Process Clause, originalists aver that fundamental rights are limited to those liberties explicitly stated in the text or clearly intended by the framers. Others ask whether the claimed fundamental right is deeply entrenched in the history and tradition of the nation. There are many varieties of constitutional interpretation, all with benefits and detriments.

At a minimum, however, the Constitution should not be a static snapshot of the 1780s. It should be a “living” document that accounts for the inevitability of societal and cultural evolution. All of nature reflects the inevitability of change; our governing document should do so as well. But what values guide a flexible interpretation? One of the most overlooked provisions in the Constitution provides insight, 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 defence, 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.[xiv]

The first three words denote the genesis of power in the people, not the local, state, or federal government, and they illustrate that the government serves the people, not the other way around. The core values that follow include democratic government, effective government, justice, and liberty. The exhortation to “form a more perfect Union” recognizes the need to change and the capacity to acknowledge protections for marginalized persons who have not been historically protected.     The call to ensure justice and protect liberty articulates the basic values of the Constitution and should be the interpretational touchstones embraced by those charged with its interpretation. While Americans value tradition and origin, we are not constrained by them. Our governing and most revered legal document should reflect the same.

Professor McKay Cunningham joined Concordia in 2014.  His scholarly research focuses on cybersecurity and data privacy, constitutional law, and property law, including voting rights, international privacy regulation, and domestic easement law. His scholarship has been featured in the Buffalo Law Review, University of Cincinnati Law Review, George Washington International Law Review, and Vanderbilt Journal of Transnational Law.

Professor Cunningham’s non-academic legal experience includes four years as a staff attorney at the Texas Supreme Court, four years as a litigator in Dallas, Texas, and one year as a law clerk to Judge Joel F. Dubina on the Eleventh Circuit Federal Court of Appeals. Professor Cunningham is licensed to practice law in Texas and Idaho and is a member of the Richard C. Fields Inn of Court. He has consulted for large companies and recently testified before the Idaho Senate regarding the propriety of a constitutional convention. Professor Cunningham has taught Property, Evidence, Constitutional Law among other courses, and was named Professor of the Year in 2015-16.

[i] U.S. Const. amend. IX.

[ii] Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 540–541 (1842).

[iii] Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 404–405 (1857) (emphases added).

[iv] U.S. Const. amend XV.

[v] Plessy v. Ferguson, 163 U.S. 537 (1896).

[vi] The Originalist, California Lawyer, January 2011, https://ww2.callawyer.com/clstory.cfm?eid=913358.

[vii] McIntyre v. Ohio Elections Commission, 514 U.S. 334, 359 (1995) (Thomas, J., concurring in the judgment).

[viii] Bradwell v. The State, 83 U.S. 130 (1872).

[ix] Minor v. Happersett 88 U.S. (21 Wall.) 162 (1874).

[x] Goesaert v. Cleary, 335 U.S. 464 (1948).

[xi] Brown v. Board of Education, 347 U.S. 483 (1954).

[xii] Loving vs. Virginia, 388 U.S. 1, 7–8 (1967).

[xiii] Lawrence v. Texas 539 U.S. 558 (2003).

[xiv] U.S. Const. pmbl.