Original Intent … or Honorable Intentions?

THE OPEN MIND
Host: Richard D. Heffner
Guests: The Hon. Sol Wachtler
Title: “Original intent…or Honorable Intentions?”
VTR: 4/16/88

I’m Richard Heffner, your host on The Open Mind. A couple of years ago, I was charged – as its chairman – with the responsibility for making a two-day “Liberty Conference” the intellectual centerpiece of this nation’s efforts to add cerebration to the celebration of Liberty Weekend, the centennial of the Statue of Liberty. And I remember with some amusement how negatively some people received my suggestion at the time that one of our several themes for examination and debate at Liberty Conference be the Doctrine of Original Intent, what Edwin Meese, President Reagan’s Attorney General, had set forth in his call for “A jurisprudence of original intentions”. In short, let the laws, let the Judges, let the courts of America steadfastly be bound now by what some determine our Founding Fathers presumably meant then, two centuries ago.

Some thought that “Original Intent” was a momentary abstraction – too frivolous a doctrine, perhaps, to be taken quite so seriously. But they were wrong. For it has become the rallying cry of many who, like the Attorney General, believe that much of the High Court’s work of the past two generations has been “bizarre”, “suspect”, “shaky”. And the Meese cry for “a jurisprudence of original intentions” will last long after the Attorney General himself.

Now, there are others of course, who feel otherwise…and just as strongly. For instance, a major American jurist said in July, 1987: “As for the doctrine of original intent, I believe that we make a serious mistake to accept the belief that the past has done its work for the present, and that our liberty, which is the cornerstone of democracy, is guaranteed. The truth is that one generation can never protect the rights of another, and although all of our great documents, the Declaration of Independence, the Constitution, and the Bill of Rights are ideal reflections of our finest aspirations, they are not self-fulfilling chariots of justice. For all their beauty, they are only words, dependent on each generation to give them a meaning and content for its town time and place”.

Those were the words of the Honorable Sol Wachtler, the extraordinary jurist who presides now as Chief Judge of the State of New York, where his illustrious predecessor, Benjamin Cardozo presided for so many years before he moved on the Supreme Court of the United States.

Judge Wachtler, thank you for joining me again The Open Mind.

Wachtler: it’s a pleasure to be here, Dick.

Heffner: You know, the words meant a great deal, particularly calling, saying “They are not self-fulfilling chariots of justice”. But, haven’t we always felt in this country that there were some things that we could depend upon in an ever-changing world, and those things were the ideas and ideals incarnate in the Constitution?

Wachtler: Well, Thomas Jefferson said that there is nothing unchangeable but the inherent and unchangeable rights of man. And I think that’s been the touchstone and the cornerstone of our democratic process. The fact is that…let’s take an illustration, let’s take the Declaration of Independence. Now no words are less in need of annotation than those which were so proudly proclaimed by our Founders in that Declaration than “All men are created equal” and yet although they wrote those words with a heart full of love and compassion for their fellow man, they never once meant to include women or members of the black race. So that if we said that the original intent should be followed, then we would never have equality, even to this day, for those people…for men, excuse me, for Black people and for women. It was each generation. The Dred Scott Decision which said that a Black person could be owned as a chattel and then we had the Civil War, the 13th, 14th and 15th Amendments and then, Plessey versus Ferguson, where the United States Supreme Court said, “Well, we would recognize equality, but there can be separate but equal”. And then, same Constitution, but a different Supreme Court in Brown versus Board of Education, saying, “No, equality meant together and equal”. And then, most recently, the Santa Clara Highway case, which said that you could have affirmative action to achieve equality for women, and for Black people. So that each generation, same Constitution, each generation giving those words, “All men are created equal”, a meaning and significance which reflects our morality and our sense of justice. Not necessarily the morality and sense of justice as envisioned by the people who wrote those words.

Heffner: But doesn’t that mean then that, as others have said, the Constitution is simply what the Judges say it is, what the Judges say it means today?

Wachtler: No, not at all. Because we do have such a thing as judicial restraint. That should not be confused, of course, with judicial abdication. Judges are, in themselves, restrained, as far as precedence is concerned, you don’t change the law every day, it is a slow, evolving process under our common law, and then you have checks within the judicial branch itself. You have a Trial Judge, reviewed by an intermediate Appellate Court and then by a Court of Last Resort, in the state and then on the Federal level, the same thing. And then you have the other checks and balances which the Founders did build into the system, of the Executive and Legislative Branches, having the ability to legislate or to amend certain Constitutional mandates, if they feel that the Court has abused its power. But, by and large, there has been that reposing of power in the Judicial Branch of government to interpret the law. And that’s exactly what the Judges have been doing.

Heffner: well, you use the phrase “judicial restraint”, you say it doesn’t mean “judicial abdication”. Again, very wonderful words, but they are words to which, quite clearly, a number of people in the legal profession and in politics in this country, take serious exception.how do we explain that?

Wachtler: Well, we explain it by, first of all, saying that if we did not have Judges who interpreted the law consistent with the evolving technology and processes which we have in our society, then the law would not be able to address the matters which come into the courts. For example, I don’t know how I, as a Judge, would apply the Doctrine of Original Intent to determining whether a life support system should be removed from a terminally ill patient, because our Founding Fathers never had to deal with that problem. So that you can’t divine the original intent in matters such as that. How do we deal with pollution in the Hudson River? These are matters which, again, necessitate Judges interpreting the Constitution consistent with this evolving civilization.

Heffner: But doesn’t that mean that in a sense you are dealing with Original Intent, because you’re saying you take the ideals of the Founders and you adapt them and adopt them to contemporary needs. You, yourself, then are going back…I mean when you pay so much respect to Jefferson, when you pay your respects to others, the Founders, and I know you do, aren’t you indeed saying, “They understood what the essence of our nation is and I shall keep repairing to that understanding”.

Wachtler: That’s very true, you see, and that’s why I think that the term “original intent” which has been used interchangeably with “strict constructionism” is sometimes a mis-use. You see if I were asked to define what I would call Original Intent, the kind of intent which should be adhered to, I would say this to you, that when the constitution was first written in Philadelphia, they didn’t have any concept of a Bill of Rights. They didn’t talk about a Bill of Rights. Why? Because they said, “Our government is going to be different from the monarchy. In the monarchy, in the Tsarist regimes, the dictators, the people in power, gave rights to the people. In our form of government, it is the people who are giving rights to the government”. Now that’s an entirely different concept. So that people who embrace the Meese Doctrine of Original Intent, every time there’s a contest between the government and an individual’s rights, they always side with the government. I think that turns the so-called Original Intent on its head. I think it should be just the opposite. When you read the history, again, of the Constitution adoption and then the ultimate ratification in the States and the debate concerning the Bill of Rights, you had certain people, Madison among them, saying “Let’s have a Bill of Rights”. The various ratifying conventions talked in terms of a Bill of Rights. New York State, Virginia, they wouldn’t sign on until such time as they were assured that there was going to be a Bill of Rights. And then you had Alexander Hamilton saying, “Why do you want a Bill of Rights? Don’t you realize that once you start defining rights, some day, someone is going to come along and say, “Well, that right isn’t a protected Right because it isn’t defined in the Constitution, therefore the constitution doesn’t protect it.” But whoever would think that that person would be the Attorney General of the United States, who would suggest that certain things, as the right of privacy…the right of privacy is not Constitutionally protected because it’s not set forth in the bill of Rights. And, according to those strict constructionists, if it’s not there, you don’t have it. And by the way, when that debate was going, when Alexander Hamilton was saying that there is a danger putting all these things down because ultimately someone is going to say, “It’s not there, it’s not protected”, Madison said, “Well, let’s resolve that by enacting the 9th Amendment”. And this is what the 9th Amendment says, very simple, one sentence, it says, “The enumeration in the Constitution of certain Rights shall not be construed to deny or disparage others retained by the people”. So what they were saying is that this Constitution limits the power of government, it is the people giving certain powers to the government and everything which is not given to the government is retained by the people. And that’s something I think that the so=called Original Intenters misconstrue when they talk about Original Intent, meaning that if the Right isn’t given to the people, the people don’t have it. It’s just the other way around.

Heffner: Suppose we move away from “strict” and “loose” constructions and talk about what, you as a historian, and as a judge you are a historian, because precedent plays such a large role in your decisions, suppose we do look back. You’ve just looked back, you’ve quoted Madison, you quoted Hamilton, you’ve based so much of what you’ve said upon what the Founders said, what do you think you can find about the Original Intent in things other than the Constitution? Can you tease out of what we know about the Founders, what we know about our Founding Nation enough to base your decisions upon?

Wachtler: Oh, yes, I think so. I think that you can find certain, again, touchstones. The limitation of power of government, I think that’s basic and fundamental. And if you read some of the Federalist papers it comes through amply. And these were written, of course, by the people, John Jay who was the first Chief Judge of the State of New York, by the way, ten years before he became the first Chief Justice of the United States. And Alexander Hamilton from New York State and James Madison. In writing the Federalist Papers you can see their primary concern was that it should not be construed, that is the Constitution, as something which gives the government too much power. That we must always consider…just to take one step back, you think in terms of the Committee on Style, drafting the Preamble to the Constitution, where Governor Morris, someone else from New York State (laughter) by the way although he was, at that time, a delegate from Pennsylvania…

Heffner: There were people from other than New York, I won’t talk about California…but, there were.

Wachtler: Forgive the chauvinism. (laughter)

Heffner: Okay.

Wachtler: But Governor Morris sitting there when they were drafting the Preamble, and the original Preamble was, “The undersigned of the State of New Hampshire and Massachusetts Bay Colony and so on and so forth”, and Governor Morris said, “You know, we might not be able to speak for each individual state government. But we know that this is an instrument which will reflect the will of the people” and so he began it, “We the people…”. Now there, again, that’s an historic reference point that we look back at when we decide our cases. And so when we say, “Does someone have a Constitutional Right of Privacy?” We say, “Of course, you have a Right of Privacy, even though it might not be specified in the Constitution” because all those things which weren’t specified in the Constitution are not denied the people, they were granted to the people. And again, this is the difference between the totalitarian form of government, where the government gave rights to the people, as opposed to our Constitution, where the people gave rights to the government.

Heffner: But you know, if someone were sitting on the outside of this dispute, and it’s very hard to as an American these days, to sit on the outside of the dispute over the Doctrine of Original Intent, might he or she not think, “Look, we’ve got someone who’s grinding this political ax and someone who’s grinding that political ax. And it depends upon whether you’re in or your e out, this whole business of Original Intent”. Aren’t we just talking about political points of view?

Wachtler: Well, we are a nation which has been constructed on a two party system. The parties have varied from time to time, but basically we are a political entity as a government. The beautiful part of our government, again, is the fact that we have three separate branches of government. Each working the checks and balances to be certain that no political point of view dominates because there is always that other branch of government which can check to see to it that the majority rule, which by and large sounds very good on paper, but can work terrible mischief, doesn’t dominate to such a point where the majority has its way at the expense of minorities. That’s one of the ways in which the political give and take in the checks and balances protects our society.

Heffner: Well, you know, I was looking through this quite extraordinary speech that you gave at the Chautauqua Institution and, aside wanting to ask you about those first words…wanting to ask, “What in the world is immutable in this changing, changing world, if we can’t depend upon the judiciary saying, “Here’s the Constitution, that is immutable and its meaning”. I understand what you say, but then you go on to say here, in this speech, you say, “Judicial restraint” and you’ve repeated that here, “…should not be confused with judicial abdication”. What in the world is “judicial restraint”? Is it what is practiced by those on the Supreme Court over the past generation or two? Or is it what Judge Bork, former Judge Bork, was advocating when his nomination went before the Senate?

Wachtler: Well, I think that Judge Bork’s views, and I respect those views, although I might not agree with all of them, adhere to the so-called Doctrine of Original intent. When judge Bork was asked, for example, “What does the 9th Amendment mean?” Senator Spector said, “What does it mean when you say , “The enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people?”, his answer was, “I’m not certain what it means”. He said that it has not been used that often, it was used in a couple of cases by the Supreme Court, but it’s not been relied on that often. The fact is that you don’t have to be a genius to know what it means. The reason it hasn’t been used that often is because the courts, again, are very mindful of the fact that you can’t take that as license to say that the people have retained every right in the world and therefore, government has to be excluded from all areas. Because we do recognize the fact that there’s a balance. “Judicial restraint” is the recognition of that balance, the adherence to precedents, the fact that we know that we have State Constitutions. And one of the reasons why the Federal Constitution could be so brief is because the state Constitutions are so long. They predate the Federal Constitution and often and do define the role of government as compared to the role of individuals. But this is a balancing process which each case involves. And we don’t want to move too quickly ahead, we have to move slowly, it’s a process, when we change governmental institutions.

Heffner: Could one take what you’ve said here today and elsewhere and say, “Look Judge Wachtler is essentially presenting an argument for parliamentary government”. That essentially he is saying that we must meet the exigencies of the time and this whole structure, the three branches together, must meet what the demands of our times and we mustn’t be bound by a set of words that were designed to help us meet the future and the future and the future.

Wachtler: Oh not at all. Not at all. Some of these words, by the way, are inviolate. I don’t suggest and I hope what I’ve said has not been interpreted as suggesting that there aren’t parts of the Constitution which are not subject to interpretation. For example, the 4th Amendment says that you should not be subject to unlawful searches and seizures.

Heffner: Ah, but Judge Wachtler…

Wachtler: There’s no question but that that the government should not be allowed to unlawfully search a person or to seize a person’s property without a warrant and we’ve specified how a warrant is to be obtained.

Heffner: But…do I understand that there has been no change in the definition of what is permitted under the 4th Amendment?

Wachtler: Oh, certainly. Certainly. There have been redefinitions with respect to what’s required because again of technology, among other things. Eavesdropping warrants. Did our Founding Fathers when they wrote the 4th Amendment perceive of wiretaps? Of course not. Did they conceive of systems whereby video cameras could be concealed to tape crimes? Of course not. So we have to then interpret the law consistent with these evolving technologies. If we were to say, “No searches and seizures, our Founders meant that you’re not to search or seize anything at any time without a warrant, well, how do we get the warrant?” Our founders intended for us…you see they were not so presumptuous as to think that they could foresee the future. And they wanted the Constitution to last. John Marshall, a member of the Virginia Ratifying Convention said, “The Constitution was meant to endure for ages to come and be adapted to the crises of human affairs”. And so, we adapt according with the changes in society, mores, principles, our sense of justice, all of these things move ahead.

Heffner: Are there areas now in which if you examine current dictate by the Supreme Court, the judicial system of our country, in which you believe there has not been a sufficient marching along with the technological and other changes in our interpretation of what is written in the Constitution of the United States. Are you perfectly satisfied that what we have done, 1988 up to this point, is consistent with the necessity of changing Constitutional interpretations in terms of the newer technologies, the newer ideals with which we live.

Wachtler: I think we’ve done a remarkable job so far.

Heffner: What’s the downside?

Wachtler: The down side is that new technologies develop every day. We have to be certain that we have Judges in our courts who are appointed based on merit, who have the ability and concern and sensitivity to continue to bringing us along. So far we’ve been extraordinarily fortunate. You talk about the changing courts and I tried to illustrate earlier how we took the “All men are created equal” from slavery to the present time. Same Constitution, different courts. We’ve been very fortunate in that. We have a Court now which is termed by many to be a conservative Supreme Court. And yet we still have the so-called Miranda Exclusionary Rule, they haven’t thrown it out the window. The reason they haven’t is because they recognize precedence and stability in the law. This is the evolving process. But we have new technologies, new diseases coming on the horizon, new sensitivity. And we’re confronted with new cases every day, as this evolves. And we have to see how we apply existing law, existing construction of the Constitution to those newly evolving fields and technologies. AIDS, something, who could foresee this kind of a disease. If a prisoner is entitled to have visitation with his wife in prison and suddenly you find that that prisoner has AIDS, are you going to deny him the visitation, even though the Supreme Court has held that there is some protection with respect to the right to visit? Well, if you don’t deny him the visit, are you then creating an opportunity for that disease to be communicated into society? New problems again with the evolving times.

Heffner: Strange question occurs to me. You’ll tell me that it’s strange, so I might just as well admit it up front. How do you account for what you consider the good fortune this country has had. Just saying it’s the roll of the dice? No. in terms of the persons who have sat in your position, the persons who have sat on the Supreme Court of the United States?

Wachtler: There was a recent speech made before the American Bar Association, which related that to the method of judicial selection. First of all, on the Federal side, the appointment and confirmation process. You have a president making an appointment to the United States Supreme Court and then you have the confirmation process. During the last go-around, which was a very edifying experience for all of us, people were saying, “Well, the President should not be interfered with. If the President makes a choice, the Senate should confirm that choice”. Not so. One of the very first choices made by George Washington, John Rutledge, was not approved by the Senate because they felt that Rutledge wasn’t Federalist enough, didn’t espouse the Jay Treaty. So that that’s something…and by the way, those people knew Original Intent because they were the “original”…

Heffner: (laughter)

Wachtler: …ones. So the fact that the Senate doesn’t confirm is something which is part of the process. So that that is part of the filtration, that’s how I account for the good fortune because the Founders did have the foresight to see that if you have an appointment made to so high a bench, a court of last resort, there should be that screening process which the Senate brings to bear. That’s done here in the State of New York. Any appointment made by our Governor Cuomo to the New York State Court of Appeals has to go through the confirmation process of the New York State Senate. And, again, that’s the balance…the executive, the legislative branch having an input in the creation of the judicial branch.

Heffner: So we’re back to what the Founders understood, that you had constantly to keep putting checks upon the will of the people as expressed by this group or that group or by the majority, itself.

Wachtler: That’s correct. You could not have…first of all, you wouldn’t want a country that was run totally by majority rule. A chimpanzee could govern with majority rule. You know, if there are more “yeses” than “no’s”, the chimpanzee says, “Yes”, if there are more no’s, the chimpanzee says, “no”. You have to have leaders in all the branches of government who are willing to move forward, to bring about change, to adapt, to conform, to sense that we can’t have cases decided, for example, by the will of the majority or the pressure of times, that would be wrong. If you did that you could find yourself in peril.

Heffner: One minute left and I just want to ask you what areas you think are the shakiest now in terms of our understanding how to apply the ideals of the Founders.

Wachtler: Well, I think that one thing that we have to be very concerned with and that is, again, and I’ll talk about the judicial branch and it relates to the others as well. There can’t be a justice system which is run properly if that justice system caters to the pressure of the moment or the pressure of the crowds. I think that the judiciary has to operate somewhat indecently. And I know people say that judges should be responsive to the will of the people. But if judges are responsive to the will of the people then they’re not performing their job as opposed to the Executive and Legislative Branch whom if they don’t respond to the will of the people can be removed from office at the next election.

Heffner: Judge Wachtler, it’s always a great pleasure to have you here on The Open Mind. Thank you so much for joining me again today.

Wachtler: Thank you.

Heffner: And thanks too, to you in the audience. I hope that you’ll join us again next time. And if you care to share your thoughts about today’s program, please write to The Open Mind, PO Box 7977, FDR Station, New York, NY 10150. For transcripts send $2.00 in check or money order. Meanwhile, as an old friend used to say, “Good night, and good luck.”

Continuing production of this series has generously been made possible by grants from: The Rosalind P. Walter Foundation; the M. Weiner Foundation of New Jersey; the Mediators and Richard and Gloria Manney; the Richard Lounsbery Foundation; Mr. Lawrence A. Wein; and the New York Times Company Foundation.