Book #16: Original Intent and the Framer’s Constitution, by Leonard Levy

I’m not going to blog much about Levy’s Original Intent here, but suffice it to say that his analysis  of the viability of "original intent" interpretation is devastating.  Of course, this doesn’t come as a huge shock since "intent" has largely been abandoned by originalists through the 1990’s in favor of "original public meaning."  (cf. Randy Barnett, Restoring the Lost Constitution).

My purpose in picking up the book was to delve into the historical justification, origins, and development of judicial review, about which I’m hoping to post soon on Progressive Commons.   But Levy covers a number of other topics, ably demonstrating the difficulty in discerning a consistent "intent" among the Founding generation for many constitutional topics (e.g., free speech, national judicial review, war powers, etc).  It seems to me that we rarely recall the extent to which the Founding generation was experimenting, trying out new forms of government, and the extent to which these experiments also represent the compromises which were practically achievable with competing interest groups.   This seems to me to be the strongest argument for treating original meaning, and the Founding generation’s record of thought and action, not as a series of immutable commandments, but as one of our sources (albeit one of our most important sources) for inspiration as we, too, attempt to adapt constitutional democracy to a quickly changing world.


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