There's Nothing Original About Original Intent.

Consider the following. You just came up with the next great widget. Everybody's going to want one--but you can't cover the production costs. So you recruit two venture capitalists and they like your idea. The prototype is impressive and you've got a deal. You shake hands, then stop by the lawyers' office and draw up some forms. Sign and date in the presence of a notary. Deposit the check, and you're in business. Two years pass. A competitor uses reverse engineering to copy your widget, changing it just enough to escape a patent suit. You made a few mistakes and now the money's all gone and you can only sell your stock at a loss. Suddenly you find yourself in court, facing off against your former partners. At issue are the terms of the writing. Forget the oral agreement and handshake.

When you get to court, will you be bound by the original intent of the parties (as revealed by the terms of the writing)? Or will the parties get up and describe the writing as a living document, with terms that are open to adaptation as circumstances or parties change? How would a judge respond to such an argument?

Lawyer: Your honor, the plaintiffs would construe this writing as a "living document," and as such, the terms are fluid. The terms are adaptable, malleable, mutable.

Court: Then why bother writing them down?

Lawyer: Well, your honor, this is the customary way of doing business, the expectation of the parties....

Court: So the parties expect to sign a written contract, but not to be bound by its terms? They plan to exchange promises but keep all the terms fuzzy? Doesn't that defeat the purpose of a writing? Fuzzy deals are for handshakes, counselor, for standing arrangements and oral understandings. The only reason anyone ever reduces an agreement to writing is in order to be bound by that writing. If the writing is a "living document" then what possible advantage was there in drafting it?

I would have to answer that I have no idea. The hard fact is, fuzzy (but 'original') terms like living document are only in vogue today because so much fuzzy thinking passes for sound reasoning. I can tolerate a great deal of existentialism and relativism. Probably too much. I can accept the idea that I will never on this Earth be able to fully share another man's shoes. A Venn diagram of our minds and experiences will never completely overlap. There may be ways in which I will never fully know even my most intimate allies.

But we speak the same language. I understand most of what is said to me in English. We can communicate. And we can come to terms. And if I promise to provide x number of products on y date, in exchange for your payment of z dollars, we have a deal. And if we take the time to write it, review it, and sign it, every court in this country will assume both parties understood it, absent some claim a party lacked capacity to enter a contract in the first place.

In addition, most literate Americans understand the written English of the late 18th century. We can read the Constitution and other founding documents and know exactly what the words mean. Originalism is the way documents have always been read. After all, how else can you understand any written word, but to attempt to read it with the tone and meaning with which it was written. The beauty of originalism is that it is completely un-original.

And if you are a hopeless existentialist, do you actually believe it is impossible to know any writer's intent at any time? Do you think the pursuit of original intent is somehow an objectionable call for speculation? Fine. Although we can make a sound argument, we need not prove the actual inner motives of any of the framers of the Constitution. Maybe it was all some sort of conspiracy, right? There's a fresh, post-modern approach.

But we can certainly require the document to be applied in a manner consistent with the original understandingof those who read and ratified it. All that requires is a reading of the legislative history, especially the wealth of letters sent throughout the 13 states explaining in detail the meaning of each article in the Constitution. Such legislative history is plentiful and it is consistent. The Constitution should be read today to have the same meaning it had in 1789. Supreme Court opinions consistent with such a reading, or inconsistent but so deeply entrenched as to have now become essential (absent an amendment) due to stare decisis, should be given the greatest precedential value. Opinions that are neither consistent with an original understanding of the Constitution, nor deeply entrenched, should be set aside or overruled. (FYI: Lest you think legislative history is a weak argument, note that lawyers make resort to legislative history every day for cases involving everything from zoning ordinances to the income tax.)

Again, I can't help but think in personal terms. What if your boss said your employment contract was a living document? Or your rich wife informed you she now saw that prenup as adaptable? Or the surgeon who injured your child argued the informed consent papers you signed now included the injury in question, because the document changed with the times?

Such arguments would be ludicrous. People do not operate this way, they don't do business this way. Scholars don't even read history this way. And those who ask courts to read the Constitution as an allegedly "living document" that changes with the times do so for only one reason: they do not believe American law would have gotten where it is today without such readings, and they are certain it will not progress further if the Court looks to anything like an original understanding. Both views are wrong and I will explain why another time.

Finally, a quote. One of the Huxley's once said he and others like him had become proponents of evolutionary theory for only one reason: it allowed them the freedom to behave any way they liked. Perhaps the same is true of those who talk about "living documents."