Original Intent and the Framers' Constitution

by Leonard W. Levy

Book Overview

Rejecting the views of both left and right, Mr. Levy evaluates the doctrine of "original intent" by examining the sources of constitutional law and landmark cases. "Merciless and brilliant. In... This description may be from another edition of this product.

• Format: Hardcover
• Language: English
• ISBN: 0029187915
• ISBN13: 9780029187913
• Release Date: January 1988
• Publisher: MacMillan Publishing Company
• Length: 525 Pages
• Weight: 2.37 lbs.
• Dimensions: 1.8" x 6.5" x 9.6"

Customer Reviews

A Careful Look at "Original Intent" or Lack of Orginal Intent

Leonard Levy's book titled ORIGINAL INTENT AND THE FRAMERS'CONSTITUTION is a well written account of U.S. Constitutional History and a solid refutation that somehow the Framers had an original intent which in fact they did not have. As one reviewer commented modern critics have more confidence of the Framers original intent than the original Framers ever thought of when the Constitution was debated and written. Another reviewer had a good point when he posed a question of whose original intent. For those who claim that the U.S. Constitution was written and ratified in a historical vaccum, Levy's book disproves such bad thinking and bad history. Levy's early comments dealt with the U.S. Constitution and U.S. diplomacy and foreign policy. Contrary to popular notions of an imperial presidency whereby the President is supposedly the sole arbitrator of foreign policy, Levy's historical probe demolishes this notion. Levy was clear that the Framers wanted members of Congress, especially the U.S. Senate, to handle diplomacy. Levy cited James Wilson of Pennsylvania whose comments on the Senate's dominant role regarding U.S. diplomacy. Among other sources for Levy's view, he cited THE FEDERALIST PAPERS number 69 regarding treaties and foreign policy. Article Six of the U.S. Constitution makes the U.S. Constitution the Supreme Law of the Land including honoring treaties. This inclusion in Article Six was in part a response to the Treaty of Paris, 1783 whereby the U.S. diplomats agreed to compensate the British Loyalists for wealth and property confiscated from them during the American Revolutionary War. Some state authorities tried to renege on paying these claims in violation of the Treaty. This may have been a smart move to keep the British from an excuse not to honor U.S. political independence. Levy disproved the notion that somehow modern U.S. Supreme Court Justices have been activists (whatever that term means) while the Supreme Court Justices during early National U.S. History were not. In fact, Levy is clear that, from the historical record, early National History U.S. Supreme Court Justices were very active. Levy cited U.S. Supreme Court decisions as early as 1791 whereby the U.S. Suprmeme Court issued a series of decisions that demonstrated a very active Court. There were cases in 1791,1797, and 1797 that showed the U.S. Supreme Court was as active if not more so than the modern Supreme Court. Levy not only dealt effectively with an early "activist" U.S. Supreme Court, he has good sections on Judicial Review. Many Americans thought that an unconstitutional law was null and void. However, the question was who was going to say so. The U.S. Supreme Court Justices said so in a badly written opinion in the case titled MARBURY VS MADISON (1803). While this was a badly written opinion, Chief Justice John Marshall (1755-1835) and his associate justices managed to set an effective legal precedent with a poorly reasoned deicison. The early U.S. Supreme

Superbly thorough argument

Levy's book is an overwhelmingly good source of information on the intent of the framers of the Constitution and on the idea that original intent is not something we should rely on. Levy uses exhaustive examples on many topics ranging from jurisprudence, the Bill of Rights and the 1st, 4th, 5th and 9th Amendments. I do have a few critiques on the book though.1- This book appears to be more a collection of essays. Many of the chapters repeat what was previously and exhaustively discussed in other chapters as if the others chapters did not exist.2- Levy does not delve into the issue of why the founding fathers feared establishments in regards to religion. England used the Anglican church to get a tighter grip on the colonies. Many Anglican parsonage positions were given as rewards (or punishments) to members of the English government. Taxes went to pay for salaries of these appointees while they did no real work. Many were never seen in the church at all. Also, England used the church to excise taxes from the colonies. None of this was discussed in the section of the establishment clause.3- Many of the terms are discussed before they are defined. This causes confusion while reading. One such term is ex post facto laws. This is discussed at length early on, but not defined until the 5th or 6th chapter. For someone with little legal background, this is troublesome.Despite these critiques, this was a superb addition to my library. I would recommend it for anyone who is interested in the ideas of the founders and what they were thinking while they were at the Constitutional Convention.

Original inten? Whose original intent? Who intended what?

It has always seemed bizarre to me how the best arguments against original intent are made by...historians! This book does many things, the least of which is to offer a very penetrating argument againt original intent. It is a book, first and foremost, exploring the history of American contitutionalism. Was judicial review intended? How do we make sense of the limilts (if there are any) of the contract clause? And what in the world does the ninth amendment actually mean?? Levy has a true historians eye and quite simply, is great at what he does. In this collection of loosely connected essays exploring the histories of these and other problems in our constitution's history, he points out what judges should've known all along; there are as many intents as their were framers, ratifiers, and Supreme Court Justices. What's more, much of the 'history of intent' is simply a jumbled mess; ambiguuos, imcomplete, and imprecise. The best essays of course are those focusing on whether original intent is a.) what was intended by the founders (isn't that ironic?) and b.) the doctrine we should actually be using. One thing I've learned in my study of the Constitution is that judges, as smart as they are, are simply bad historians. From Dred Scott to Bowers v. Hardwick, judges have botched history - whether deliberately as in Scott, or not, as in Bowers. One Justice Levy is particularly hard on is (one of my judicial heroes) Hugo Black - and for good reason! Black's history is narrow, reflects an overconfidence in the founders that they never even had of themeselves, and simply (particurly with the fourteenth amendmen) gets a lot of it wrong. He is hard on Robert Bork for just this reason.In summary this is a great book. Levy doesn't take too many sides here, but is probably something akin to a Jeffersonian Democrat. He is rigorous, mindful of the burden of his task as historian, and illuminating. For another great argument by a historian on the difficulties of original intent, read Rakove's "Original Meanings". For an argument in favor of OI, the standard is Bork's "Tempting of America". Enjoy!

Lays waste to the jurisprudence of "original intent"

Without a doubt, Leonard William Levy has produced the finest argument against the doctrine of original intent that I have ever read. As a liberal working in Washington, DC, I have long been bothered by conservative criticism that our judiciary has been over-run by "judicial activists." In my attempts to understand the issue, I have read many accounts of what is supposedly wrong with the idea of an "evolutionary constitution," and found them interesting and compelling and was beginning to think that I had made a terrible mistke in terms of my political outlook.Granted, much of that can be accounted for by the fact that the only things I was able to find about "original intent" were written by the likes of Robert Bork and Antonin Scalia, both of whom subscribe to this theory. But then I discovered Levy's book and found that the theories of Bork et al. were not all they were cracked up to be. Levy is a Pulitizer Prize winning historian who examines the birth of our Consititution in amazing detail, citing the Constitutional Convention, the Federalist Papers, Anti-Federalist pamphlets, state constitutions and ratifying conventions and presents a clear view of the state of our nation even as if was being formed. His insight is so far beyond the pseudo-history offered up by Bork and his ilk that it is almost embarrassing to think that men of such intellects could be so sorrily mistaken. With chapters on the main areas of debate within the Constitution iteself, and others covering the Frist, Fourth, Fifth and Ninth Amendments, Levy gives us a very clear picture of just what has happening at the time the Constitution was being debated and ratified. The three final chapters are, by far, the most impressive deconstruction of the theory of "original intent" I have ever encountered. In fact, I would recommend that the reading of these final chapters alone offers up more insight and better arguments than anything else ever written. While at times the reader can get bogged down in details, it is the fact that Levy knows and includes them all that makes this work so extremely valuable. The writing is clear and entertaining and Levy has no problem telling those who subscribe to the doctrine of "original inent" that they have "the historical imagination of a toad." In all, Levy has crafted a solid, insightful and entertaining book that I can not recommend highly enough.

Recommended for college-level political science students

Debates keep raging and struggles re-surfacing over the original intentions of the Founding Fathers when they drafted the constitution. Original Intent And The Framers' Constitution provides an argument by constitutional scholar Levy, who rejects the views of both left and right sides in examining sources of constitutional law and cases supporting original intent. Recommended for college-level political science students.